• Accountability is important. In our system, judges have a very high status and a lot of power.
• There is a risk of their becoming arrogant because of their limited accountability.
A recent decision by Justice Weldon Korir about efforts to discipline Justice Jacktone Ojwang, Mohammed Ibrahim and Mumbi Ndung’u of the Supreme Court may have raised this question.
It’s a sad case, showing the depth of personal animosities in the court.
There are procedures for disciplining magistrates, which we do not need to go into here — though they are very important, particularly because magistrates deal with the overwhelming majority of cases, and because magistrates are often promoted to the higher courts.
The issue arises with judges of those higher courts — the High Court, and its equals, the Court of Appeal and the Supreme Court.
As a law student, I learned that such judges in England could be removed only because of an address by both houses of Parliament to the Queen. But if a judge was getting old, even senile (and in those days there was no retiring age) a quiet word in the ear was probably enough to secure a resignation and, if not, whoever assigned cases to judges could ensure that the dubious judge got no significant cases.
The idea that judges – both as an institution and as individual judges – must be independent was something that took centuries to take hold. That independence should be from the government and from others (economic, political or religious) who might be tempted, and able, to influence their decisions.
Our Constitution includes the generally accepted ways of ensuring judicial independence. One is a mechanism of appointment that does not depend on the Executive (we have the Judicial Service Commission that has a majority of judges and lawyers).
The Constitution tries to ensure that judges cannot be pressurised by any threat of reducing their salaries etc. Once decided on, their salaries are not discussed in the annual budget process in Parliament. This was to stop Parliament from taking the opportunity to pick on the judges individually or as a group.
And it is very hard to sack them. They can only be removed by a process involving the JSC, which reports to the President, if it finds there is good ground for removal.
The President must then appoint a high-powered tribunal, dominated by lawyers or judges, to look into the allegations. If the tribunal recommends the removal of a judge, the President must comply. And the grounds for removal are supposed to be narrow: the most relevant is “gross misconduct or misbehaviour”.
The Constitution also says judges are under the Constitution and the law only, and must not be directed by anyone. And they cannot be taken to court for what they do, “lawfully” in their capacity as judges.
The Australian Constitution, incidentally, has been read to prohibit judges doing anything except judging – such as heading commissions of inquiry for the government.
HOW ABOUT ACCOUNTABILITY OF JUDGES?
Accountability is another prominent value in the Constitution. Everyone holding public office is to be accountable. Chapter Six says that among the guiding principles of leadership and integrity (which apply to all state officers, including judges) is “accountability to the public for decision and action”.
But now there is a little element of “the public” in the removal – except that anyone may complain to the JSC.
Accountability is important. In our system, judges have a very high status and a lot of power. There is a risk of their becoming arrogant because of their limited accountability. In theory, the possibility of having their decisions rejected in an appeal court is some constraint. But few cases go on appeal. In 2018-19 the High Courts dealt with 26,000 civil cases. The same year, 1955 civil cases were appealed at the Court of Appeal and just under 1,000 were decided. Were all the others thoroughly satisfied, or just exhausted, financially or otherwise? And there is no appeal from the Supreme Court.
In reality, it is very difficult to devise methods of disciplining judges, while not exposing them to the risk of being victimised not for real incompetence but for deciding cases, even bravely, against the government and the powerful.
In Kenya, judges are moved from station to station, and from division to division of the High Court. A major Indian case nearly 40 years ago decided that transferring judges must not be used to punish them — it would be an interference with their independence.
In Kenya, there are guidelines for the Chief Justice on transferring judges, designed to avoid any risk of this. It is not entirely clear that it has always been respected — notably in some transfers in 2018 that involved moving one or more judges to rather more remote stations where they might do what the government would consider less damage.
THE RECENT CASE
The judge, in this case, decided that the only power that the JSC has is to pass on a recommendation to the President for removal of judges – after they have given the judge a fair hearing on the allegations.
They had no other disciplinary powers. An important part of the judge’s reasoning was that the Constitution states very clearly that the JSC‘s function include discipline of registrars, magistrates and so on – but this power does not include “disciplining” superior court judges.
I have a little problem with this logic. I have one uncertainty – what the JSC did was to “admonish” the judges. It said in a letter to Justice Ndung'u that what she had done was misconduct but not gross, so did not deserve a recommendation for removal.
There are real dilemmas here. If the JSC feels that a judge has done something wrong, are they obliged to keep silent about it if it is not serious enough to merit removal? Or is the problem the word “admonished”? Yet admonish is a rather formal word for advise or warn.
Even with judges, one might have a situation in which erring once is forgivable, but erring repeatedly, in the same way, could lead to removal. Surely the erring judge should be warned? Or should it be done informally, and secretly – not as a letter?
There is a legitimate concern that if it becomes known that a judge has been warned, this might undermine their position and leave people who appear before them feeling uncertain about obtaining justice.
CAN A JUDGE BE REMOVED BECAUSE OF PARTICULAR REASON?
The other thing Justice Korir said was that a judge’s decision in a case could not be used as the basis for removal proceedings. The way to deal with a wrong decision is for it to be appealed to the next court up.
True, this avoids external interference with the process of deciding cases, helping to preserve judicial independence. It is right that if the Judge approaches the case in the right way, but perhaps get the law wrong, this should not be a ground for removal. And we have seen that appeals are rare.
However, incompetence is a ground for removal – and how else can a judge be incompetent than in deciding cases? However, allegations here were not of incompetence – but gross misconduct.
But, the Salat case was unusual. It was an election case. On that issue there was no problem – all the judges in the Supreme Court agreed with the courts below.
But did the judges behave improperly when they brought into the case a letter written by a lawyer in the case to the Chief Justice? The letter concerned the individual judges because of their ongoing dispute about the retiring age for judges (affecting Justices Ibrahim and Ojwang).
It is arguable that for their own interests they dragged in something of no real relevance to the case they had to decide. Just to say removal proceedings should not be about individual cases is not an adequate way of dealing with the matter.
Countries worldwide have not resolved this dilemma. We attach importance both to the independence of the judiciary and to accountability.
And the irony is that it is the judges who have to decide where the balance lies.