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February 19, 2019

A constitutional tragedy in several acts

 Chief Justice David Maraga (C) with members of the National Council on Administration of Justice (NCAJ) during a joint meeting at Enashipai resort in Naivasha. Maraga defended the recent transfer of Judges saying it was a normal routine in any department and promised to make more transfers next week.Photo George Murage
Chief Justice David Maraga (C) with members of the National Council on Administration of Justice (NCAJ) during a joint meeting at Enashipai resort in Naivasha. Maraga defended the recent transfer of Judges saying it was a normal routine in any department and promised to make more transfers next week.Photo George Murage

 

What a tragedy was played out on pages 4 to 5 of Tuesday’s Star!

The Chief Justice — who so boldly told the President that he was not a presidential project, when Uhuru Kenyatta tried to use David Maraga’s appointment as an electioneering tactic with the Kisii — stands accused of undermining the independence of the Judiciary by caving in to presidential pressure in “reshuffling” some judges.

Some judges are accused of “rubbing the Executive up the wrong way” and thus making themselves vulnerable to being penalised. On page 5 we have the legislative Rottweiler, Moses Kuria, getting his teeth specifically into Justice Chacha Mwita (currently the most high profile of the “reshuffled” judges).

He growls menacingly at the Chief Justice, too.

And the President is accused of what would be clearly improper pressure on the Judiciary to get certain judges out of the executive’s hair.

Interestingly, this development followed hard on the heels of the announcement last Friday about the Judiciary’s response to the anti-corruption campaign and the need to ensure the courts play their part. A perfectly reasonable statement.

But now, Judge A  is moved to where Judge B has been; Judge B is moved to where Judge C has been, Judge C is moved to where Judge A  has been; Judge D is moved to where Judge E has been while Judge E is moved to where Judge D has been. And all this, the CJ says, is “following an assessment of the needs and resources of the Judiciary”. Really?

 

IS THERE A PROBLEM WITH CJ’S ACTIONS?

Every law student is imbued with the notion that justice should not only be done, but should manifestly (clearly) be seen to be done. In other words, as much damage is done to the legal system, if people believe that justice is not being done as if justice is actually not being done. It’s not that appearance is all: Both reality and appearance must be there. This is just as true of the Judiciary’s administrative decisions as of its legal ones. Even if the CJ is truly actuated by a need for moving judicial resources, no one is going to believe it. And imagine the impact on individual judges: Will they not get a message that, “If you irritate the President too much you will find yourself summarily transferred”?

And an aggrieved judge might be tempted to sue the CJ for breach of the constitutional duty to make administrative decisions –that are “lawful, reasonable and procedurally fair”.

 

TRANSFER PROCEDURES

There are guidelines for transferring judges. They include that “Judicial Officers due for transfer should be given adequate notice so that they can dispense with their present workload and organize family affairs”.

The normal approximate tenure of posting for each Judicial Officer is three years, though there is room for flexibility. Longer and there is fear that judges will become too close to some people.

Also, “Transfers will not be employed as a disciplinary tool”. In 1981, the Supreme Court of India stressed the same point, adding, “Undoubtedly, when a judge is transferred by the Government because he does not toe the line of the executive or gives decisions against the Executive or has for some reason or the other fallen from its grace, it would be a transfer by way of punishment. “

The same court commented on the secrecy of the process: “The mystique of this process is kept secret and confidential between just a few individuals, … and the possibility cannot therefore be ruled out that howsoever highly placed may be these individuals, the process may on occasions result in making of wrong appointments and transfers and may also at times, though fortunately very rarely, lend itself to nepotism, political as well as personal and even trade-off.”

Rules and guidelines serve various purposes. To avoid unfairness is obviously one, as is enhancing efficiency. Another is to offer a basis for resisting pressure to act unfairly. “I am sorry, I can’t do that; we have procedures that we must follow unless there is good reason”. In this case, the guidelines have values attached, including “i Openness and transparency” and “ii. Predictability”.

We should recognise that sometimes a judge may wish, or even apply, to be transferred away from a “hot seat”. Few people focus on the enormous strain that it must place on judges to be asked constantly to decide that what government has done is wrong.

 

IF JUDGES ERR

Judges may be wrong, seriously or less so, persistently or occasionally, or may be influenced by politics or even money. There is probably no judge who has never been wrong — if the legal answer to an issue was simple, it would be sensible not to go to court in the first place. But for judges to be persistently wrong (so incompetent) or deliberately perverse influenced by financial or political decisions would also be a tragedy, especially when the judges have so crucial a role in implementing the constitution. It is obviously equally a tragedy if some judge has been giving, without justification, escape routes for accused persons facing prosecution.

But for any of these things, transfer is not the solution.

If a judge is making poor decisions, there is a procedure to deal with it. Those aggrieved can appeal. If the matter is urgent the court calendar can ensure it is dealt with promptly.

It is perfectly in order for a head of division to have quiet word with a judge who is making mistakes.

And judges who take bribes or bow to political influence should not be holding office and there are procedures for their removal.

 

JUSTICE MWITA

So how about Justice Mwita’s decision about Justice Warsame and the Judicial Service Commission? The judge was faced last month with the failure of the President to carry out his duty as perfectly reasonably (and constitutionally correctly) pointed out to him by the same judge in July last year. That presidential duty was simply to formally appoint Justice Warsame, elected by the Court of Appeal judges to be a member of the JSC, to that position. Under the law, the President should have done so within three days of receiving Warsame’s name, in March last year.

I must to confess to some doubt about whether it was right to say that no oath was needed when the judge was elected for a second JSC term. MPs are sworn in again when they are re-elected. Once a term ends, you are no longer the holder of an office. And elected JSC members do not have their terms extended, though they may be elected for a second term, but not until after the first has ended.

But was the judge supposed to say, “Justice Warsame should have been formally appointed, sworn in and be sitting as a member of the JSC for months now, but there is nothing I can do about this because I cannot force the President to act”? As he pointed out, judges are supposed to provide a remedy for illegalities. Possibly a compromise would have been to declare the judge formally appointed, and that the Chief Justice should swear him in. This would have put the CJ on even more of a collision course with the President, of course!

 

THE FINAL TRAGEDY

Another aspect is the attitude of our Executive, above all of the President from whom we ought to be able to expect some moral leadership, and dignified restraint. But not for Kenyans the statesmanlike approach of Nelson Mandela.  As our own former CJ, Willy Mutunga said of him, “By honouring court summons to testify, publicly acknowledging and accepting court orders that reversed his decisions, Mandela personified respect for rule of law, independence of the Judiciary and the principle of separation of powers at a delicate moment of political transition in a fragmented and divided society. By choosing the path of allegiance to law, Mandela cast himself on the right side of history. It made him bigger, not smaller.”

 

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