283/03 : B / Kenya
Summary of Facts
1. The communication is submitted by a Complainant who requests anonymity and presents the facts
of the case as follows:
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2. The Complainant alleges that on 30 September 2003, the Anti-Corruption Committee presented a
report on corruption in the judiciary to the Chief Justice of Kenya in the presence of the press. The
Report also known as the Ringera Report reveals shocking and endemic corruption in the judiciary
and further lists the names of the judges alleged to have been involved in corrupt and unethical
practices in the course of performing their duties.
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3. On 4 October 2003 during a press conference, the Chief Justice without naming the judges is
alleged to have given the said judges a two-week ultimatum to resign or face trial. Two days later, the
Constitutional Affairs Assistant Minister is reported to have reiterated the deadline issued by the Chief
Justice and warned that judges who ignore the deadline would face tribunals and prosecution for
crimes committed.
4. The Complainant states that the Kenya Magistrates and Judges Association was quoted in the
press as saying “we urge the judicial administration to inform those affected so that they can decide on
their next course of action not forgetting the need for confidentiality” However, the Complainant claims
that over the following several days none of the judges named in the report were informed of their
presence on the list nor of the allegations leveled against them.
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5. The Complainant avers that on 14 October 2003 it was reported through a six o’clock news
broadcast that the President had appointed two tribunals to investigate the twenty-three (23) judges
whose names were announced during the broadcast as well as their suspension. The Complainant
asserts that this is the first time that the judges learnt of their presence on the list and of their
immediate suspension. The announcement however did not contain details of the allegations made
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against each judge. It is however reported in the Daily Nation Newspaper on 18 October 2003 that
the police would question some of the judges before they appear before the tribunals and it is only
during those interrogations they will be informed of the accusations against them and their statements
taken.
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6. The Complainant alleges that as of 17 October 2003, the judges had still not received details of
the allegations made against them despite continued press coverage of the matter. Although
maintaining their innocence, some of the named judges tendered their resignations or sought
retirement.
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7. The Complainant further submits that the Chair of the Law Society of Kenya on 18 October 2003
announced through the press that the Society would in two weeks’ time release its report containing a
list of judges other than those named in theRinger[a] Report.
8. The Complainant on the whole submits that failure to advise the judges mentioned in the Ringera
Report of the allegations against them and to give them an opportunity to accept or dispute the
allegations coupled with varied threats and warnings amounts to harassment and hounding of judges
thereby undermining the principles of security of tenure and the independence of the judiciary.
9. Furthermore, the Complainant claims that the manner in which the whole matter was dealt with
violates Articles 7 and 26 of the African Charter as well as other international human rights instruments
namely the UN Basic Principles on the Independence of the Judiciary, the International Covenant on
Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights.
Complaint
10. The Complainant alleges a violation of 7 and 26 of the African Charter.
Procedure
11. The communication was faxed and received at the Secretariat of the African Commission on 21st
October 2003. The Complainant also requested the African Commission to take Provisional Measures
under 1995 Rules of Procedure of the African Commission on Human and Peoples' Rights, Article
111 of the Rules of the African Commission to ensure that the process of removal of judges does not
interfere with independence of the judiciary and the right to a fair hearing.
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12. The Secretariat of the African Commission on 24 October 2003 forwarded a copy of the
communication as well as a draft Appeal Letter to the Chair of the African Commission and requested
him to take necessary action.
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13. By email dated 28 October 2003, the Chair of the African Commission wrote advising the
Secretariat that since the matter would be handled as a communication at the African Commission’s
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forthcoming 34 Session, an Appeal Letter should not be sent to the government of Kenya until after
the African Commission had examined the matter and determined what course of action to take.
14. On 31st October 2003, the Secretariat of the African Commission wrote to the Complainant
acknowledging receipt of the communication.
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15. At its 34 Ordinary Session held from 6 to 20 November 2003 in Banjul, The Gambia, the
African Commission examined the communication and decided to be seized of the matter.
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16. On 4 December 2003, the parties to the communication were informed accordingly and
requested to forward their written submissions on admissibility of the communication within 3 months.
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17. On 15 March 2004, the parties to the communication were reminded to forward their written
submissions on admissibility to the Secretariat.
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18. By email dated 16 March 2004, the Secretariat received a letter from the Complainant
withdrawing the matter as she believed that the matter was now being addressed by the Respondent
State.
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19. On 25 March 2004, the Secretariat received the Respondent State’s submissions on
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admissibility and acknowledged receipt of the same on 26 March 2004.
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20. By letter dated 26 March 2004, the Secretariat acknowledged receipt of the Complainant’s letter
withdrawing the communication and also forwarded a copy of the Respondent State’s submissions on
admissibility.
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21. At its 35 Ordinary Session held in Banjul, The Gambia, the African Commission considered this
communication and decided to close the file.
Respondent State’s submissions on admissibility
22. The Respondent State provides a background against which it undertook the judicial reforms
which have in part given rise to this communication. They argue that a well functioning judicial system
is crucial to improving governance, combating corruption and consolidating the democratic order,
thereby fostering economically sustainable development. Therefore, a judicial system with integrity
should be free from political and external interference. Furthermore, judicial independence must be
balanced by accountability in order to facilitate transparency within the system and control of
corruption.
23. It is submitted by the Respondent State that the tendency towards corruption and abuse of power
among certain members of the judiciary in Kenya has been lamented over time. As such, one of the
key objectives of the Kenyan government has been to undertake judicial reform in order to develop an
impartial, independent, accountable and effective judiciary that is able to improve governance and
advance development in the country.
24. The Respondent State contends that the communication does not meet the requirements
in Articles 56(2), (4) and (5) of the African Charter.
25. It is submitted that the communication is substantially based on newspaper reports and is
therefore not founded on factual realities of the case contrary to Article 56.4 of the African Charter.
26. The Respondent State further submits that the Complainant did not even attempt to exhaust local
remedies in their case as required by Article 56.5 of the African Charter. In this regard, the
Respondent State argues that the national legal framework in Kenya is adequate to address the
concerns raised by the Complainant and should have therefore been utilised. For instance, the
concerns raised by the Complainant could have been addressed through, the constitutional provisions
or national statutes like the Public Officer Ethics Act 2003, the Anti Corruption and Economic Crimes
Act 2003. Furthermore, local judicial action and remedy is available to the judges, should any of the
procedures adopted be deemed illegal or in any case ultra vires.
27. The Respondent State reports that the judges are not on trial as understood but that special
investigative tribunals were set up to determine issues touching upon the behaviour and ability of the
judges implicated to perform the functions of their office. [Twenty-three] (23) judges from both the
Court of Appeal and High Court of Kenya were involved and were investigated within 14 days of the
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presentation of the Ringera Report. The Tribunals started sitting on 9 and 16 February 2004.
28. Confidentiality was assured for the affected judges in the initial stages and at all crucial times.
Only broad categories of alleged offences were highlighted in the media. The Respondent State
argues that it was therefore possible for a judge to privately and conscientiously place him/herself into
any of the categories and make a personal decision to resign or appear before the tribunals.
Consequently, [the] majority of the judges mentioned opted for early retirement with full benefits as a
result.
29. In any case, the Respondent State argues, that the judges had the option within the laws to
challenge the process before the High Court should they be aggrieved by it but none of the said
judges opted for the judicial remedy.
30. The Respondent State maintains that the domestic legislation of Kenya is in consonance with
both the letter and spirit of international law including the UN Basic Principles on the Independence of
the Judiciary and asks the African Commission to declare the communication inadmissible.
Reasons given by the Complainant for withdrawing the communication
31. The Complainant wrote to inform the African Commission that they received information that the
Registrar and Chief Justice did not authorise the leaking of the names of the implicated judges to the
press and that this particular matter was now being investigated by the Judiciary. Furthermore, the
issue of a fair trial in light of the publicity created prior to the suspension of the judges had been raised
before the tribunals and that the matter was being handled and could end up with the constitutional
court of Kenya [sic].
32. It is for this reason that the Complainant wishes to withdraw the communication.
The African Commission takes note of the withdrawal of the communication by the Complainant and for
this reason decides to close the file.
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Done at the 35 Ordinary Session held in Banjul, The Gambia, from 21st May to 4 June 2004.