Corruption in Kenya’s judiciary has increasingly become a matter of grave concern to both citizens and legal stakeholders.
We often celebrate the idea of judicial independence but it’s time to confront a hard truth.
Our justice system, especially at the highest levels, is nothing but a playground of the rich and powerful.
When money flows through the corridors of justice, can we really say that our courts are independent? Or are they simply beholden to the highest bidder?
This issue is not merely a reflection of isolated incidents but a deep-seated problem that affects the highest echelons of the judiciary, including the Supreme Court.
Recent online discussions, particularly on X (formerly Twitter) have seen the emergence of an interesting term depicting the pervasive corruption in the legal system: “JurisPESA.”
Coined by distinguished Senior Counsel Ahmednasir Abdullahi, who, over the years, has gained notoriety for his outspoken critiques as well as the recent contentious battle with the judiciary, the term “JurisPESA” reflects his enduring stance against what he perceives as rampant corruption within our legal system.
Following a historic ban from the Supreme Court in January 2024—making him the first lawyer in Kenya to face such a sanction twice—lawyer Ahmednasir Abdullahi has since vehemently denounced the court’s integrity, portraying the exclusion as a mark of honour in his relentless quest to expose judicial malfeasance.
This unprecedented ban, enacted by the court under the leadership of Chief Justice Martha Koome came in response to Ahmednasir’s relentless criticism which the court deemed as undermining its authority and credibility.
One of the central allegations in the ongoing “JurisPESA” discourse is that the judiciary (particularly the Supreme Court) is easily swayed by those who can afford to pay for favourable outcomes.
This perception suggests that the scales of justice are tipped in favour of the wealthy and powerful.
For instance, he pointedly remarks that the order from the Supreme Court staying the Finance Act 2023 annulment by the Court of Appeal was allegedly paid for by the government.
In his critique, Ahmednasir did not spare the senior legal practitioners, who, according to him, are deeply entrenched in this alleged corruption.
He accused senior lawyers of perpetuating the culture of “JurisPESA”.
The lawyer argued that despite their extensive experience, many senior lawyers have remained conspicuously silent about judicial corruption.
He further criticized the senior bar for its failure to publicly condemn or address the corruption within the courts.
In a passionate outburst on social media, he questioned how seasoned practitioners could avoid speaking out against judicial corruption if they were not themselves complicit.
The idea that the rich can essentially “buy” favourable outcomes undermines the principle of impartial justice and shows a systemic issue where financial power dictates judicial decisions.
In the Supreme Court of Kenya… You can’t overcome JurisPESA. Don’t waste your time. Unfortunately, great judgments of the Court of Appeal are buried at the Supreme Court.
— Ahmednasir Abdullahi SC (@ahmednasirlaw) August 20, 2024
Another key issue raised is the near-unanimous decisions rendered by the Supreme Court judges.
This phenomenon of near-complete agreement among the Court’s seven judges, often reaching a consensus on 99.9% of their rulings, raises important questions about the functioning and dynamics of Kenya’s highest court.
In a judiciary that is supposed to thrive on diverse perspectives and rigorous debate, such uniformity in decisions is unusual and warrants scrutiny.
The presence of seven distinct legal minds in the Supreme Court, each with their own experiences and viewpoints, should naturally lead to a variety of opinions and interpretations.
However, the current scenario suggests an almost monolithic approach to judgment.
Ahmednasir Abdullahi has been particularly vocal about this phenomenon and often uses it as one of the central points in his broader critique of the judiciary’s integrity.
He suggests that the near-unanimous decisions may be a result of financial influences or corruption, where the principles of impartial justice are compromised.
According to Abdullahi, if financial power is able to sway judicial outcomes, it would create a homogenous view among the judges, as those who cannot be bought are pressured or incentivized to align with the majority.
Here, a stark contrast is drawn between the current state of the Supreme Court and its more diverse decision-making under previous Chief Justices.
He notes that during Chief Justice Willy Mutunga’s tenure, dissenting and concurrent judgments were more common, reflecting a more robust judicial debate.
The decline in such opinions under Chief Justice David Maraga and the near-total disappearance during Chief Justice Martha Koome’s leadership is viewed by Ahmednasir as symptomatic of the current issues within the Court.
In my next post, which is fairly long, I will flesh out how the controlling legal philosophy of JurisPESA in the Supreme Court of Kenya inhibit dissents and concurrent judgments among the 7 judges of the Supreme Court. For instance, how can 7 judges agree in 99.9% of the…
— Ahmednasir Abdullahi SC (@ahmednasirlaw) August 21, 2024
Building on his critique of the Supreme Court’s near-unanimous decisions, lawyer Ahmednasir has proposed a radical but thought-provoking idea: the formal study of “JurisPESA” in law schools across Africa.
He argues that law schools in Kenya, Uganda, Tanzania, and other Sub-Saharan countries should introduce an undergraduate course titled “JurisPESA: A Study on How Money/Bribes Influence Court Decision-Making Processes.”
In a recent post on X, Ahmednasir advocated for a comprehensive examination of the interplay between money and justice, urging law scholars to explore how financial influences impact judicial outcomes.
The Influence of Money: Analyzing how bribes and financial incentives shape judicial decisions and whether they perpetuate injustice.
Law and Morality: Examining the ethical implications of bribery in the legal system and its impact on the development of law.
Regulatory Frameworks: Proposing models for regulating bribery, drawing parallels with how Western democracies handle the prostitution industry as a regulatory benchmark.
Economic Aspects: Exploring the quantum of bribes and their correlation with desired outcomes, and whether such practices should be regulated or even taxed by governments to level the playing field.
By addressing these topics, he believes that legal education can better prepare future lawyers and judges to confront and combat corruption.
The course would also aim to develop a framework for understanding whether money always leads to injustice or if, in some cases, it can be used to protect legitimate rights within the court system.
Any serious law school in Kenya and even in Uganda, Tanzania, and most of Africa MUST teach an undergraduate course on "JurisPESA…a study on how money/bribe influences courts' decision making process in Sub-Saharan Africa". The interplay between money and injustice/justice and…
— Ahmednasir Abdullahi SC (@ahmednasirlaw) August 20, 2024
These observations cast a harsh light on the role of the senior legal community in perpetuating JurisPESA.
Their decades-long silence on corruption is not a coincidence but a reflection of their own engagement with the corrupt practices that plague our courts.
By avoiding public condemnation, these senior lawyers validate and perpetuate the very system they should be challenging.
This silence is not a matter of oversight or professional discretion—it is a tacit endorsement, if not active participation, in the subversion of justice.
Their failure to address the moral and legal decay within the judiciary emboldens a system where verdicts are auctioned off to the highest bidder and JurisPESA becomes the unwritten rule by which justice is dispensed.
For over 35 years, these seasoned practitioners have quietly participated in the very system they now avoid condemning.
Their complicity in maintaining a judiciary where JurisPESA supersedes legal merit and where justice is commodified, cannot be ignored.
The consequence of this pervasive complicity is a judiciary that operates not as an arbiter of fairness and impartiality but as a marketplace for influence and power.
If this silence continues unabated, the credibility of the legal profession will be irreparably tarnished, and the promise of justice will remain an illusion for the vast majority who cannot afford to play the JurisPESA game.
It is high time that the senior bar confronts its own role in perpetuating this system, for only through a candid reckoning with their complicity can we begin to dismantle the stranglehold of corruption on our courts and restore faith in the integrity of our legal institutions.
Without such a shift, JurisPESA will continue to dictate the course of justice in Kenya – to the detriment of all but the wealthiest and most powerful among us.
