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The Judiciary is facing a massive crisis of confidence. This is very grave, as public confidence in the courts is the bedrock of the rule of law.

There are too many unresolved charges of corruption and abuse of office facing very senior judges.

These charges are threatening the very fabric of the country’s judicial system. Some have been dragging on for years.

One case of abuse of office and corruption is enough to undermine confidence in the entire Judiciary.

In 2018, Deputy chief Justice Philomena Mwilu was arrested on charges of corruption, failure to pay tax and improper dealings with Imperial Bank. 

An attempt to make her step aside as her case was ongoing hit a brick wall after she successfully appealed against a court ruling ordering her to do so. She is still battling the charges against her.

In July 2021, two High Court judges, Aggrey Muchelule and Juma Chitembwe, were arrested after detectives raided their offices and found $50,000 (Sh5.6 million) in the former’s chambers and recovered $7,000 (Sh789,000) from the latter’s.

They were released on the same day, but soon filed a case against their arrest. The High Court ruled against their subsequent arrest until February 2022.

But even before the dust had settled, Justice Chitembwe was caught up in another corruption scandal.

Former Nairobi governor, Mike Sonko, released video tapes purportedly showing bribery negotiations with a representative of the Judge on cases he was hearing.

This time, the Judicial Service Commission (JSC), that is chaired by Chief Justice Martha Koome, summoned the Judge to defend himself.

In response, he moved to court to stop the JSC from hearing the case against him. In the meantime, three other petitioners filed petitions seeking his removal. 

In October 2021, Gabriel van Straten, the sister to the late businessman, Tob Cohen, who was brutally murdered in his house in Nairobi, filed a petition seeking the removal of Judge Sankale ole Kantai, for alleged involvement in the death.

A similar petition was filed by public interest litigator Okiya Omtata.  The petitions said the judge had been linked to the death of Cohen through his supposed love affair with Cohen’s widow Sarah Wairimu currently on trial over the death.

JSC has asked the Judge to appear before it to respond to the petitions.

And these are only the cases that have come to light. Unless Justice Koome deals quickly and decisively with these cases, her legacy risks being irredeemably stained. 

It will take a lot of courage to deal with these matters. The accused judges have shown  every indication they will go down with the ship if necessary. 

The Judiciary must draw a line in the sand under what is now a full blown crisis of public confidence.

The matters continue to poison the Judiciary every day that they remain unresolved.

What is even more disturbing is that the judges, despite these very grievous charges, continue to sit on the Bench, hearing cases of other accused.

In July 2019, Justice Mumbi Ngugi ruled that governors who had been charged with abuse of office must step aside until their cases were concluded.

In the spirit of that judgement by the same Judiciary, the judges facing these charges should have been required, nay, compelled, to step aside.

Koome has some very tough calls to make. Ultimately, she will have to decide whether judges whose credibility is in tatters can continue serving on the Bench.

Former deputy Chief Justice Nancy Barasa, was forced out of office for much less by the very same JSC.

It’s clear that something is terribly awry with the Judiciary. Kenya has found itself here before.

The country tackled this through a thorough vetting of all judges and magistrates.

The first was the radical surgery under President Mwai Kibaki, and the second was mandated by the 2010 Constitution on promulgation, through the Magistrates and Judges Vetting Board.

By all appearances, the Judiciary is ripe for another purge. It is the only way public confidence will be restored in the Judiciary. Is Chief Justice Koome up to it?