• Judges who agree with another judgment are said to concur.
• Those who disagree dissent. A judge might do both on different issues – like Justice Justice Sichale.
Gripping though the Court of Appeal’s BBI decision was, the tweets about it were also interesting.
Lawyer Ahmednasir Abdullahi said, “With each of the 7 judges writing his/her judgment this looks like a very untidy and confusing enterprise...unless Justice Musinga does a proper summary and housekeeping in his lead judgment”.
Clearly many people did find it a bit confusing.
But lawyer Waikwa Wanyoike tweeted, “Today is our evidence why we must keep demanding that our Supreme Court - our most insular and unaccountable Court - has to get into the habit of doing more individual judge's opinion.”
Judges who agree with another judgment are said to concur. Those who disagree dissent. A judge might do both on different issues – like Justice Justice Fatuma Sichale.
WHAT HAPPENS ELSEWHERE
It partly depends on the system of law.
The late Justice Ruth Ginsburg of the US Supreme Court once heard a French colleague ask: “Isn't it the court's responsibility to identify by judgment the (one and only) correct interpretation?”
Some European countries and European international courts give one judgment, partly because of the different nature of the judiciary.
In many European countries, the judiciary is a career path. Judges are bureaucrats. The English tradition (adopted in Kenya to some extent) involves judges appointed from practising – and argumentative – lawyers.
The Court of Justice of the European Union delivers one judgment.
Its judges have renewable terms, and it is perhaps in their interests not to be exposed as the authors of opinions that might not win favour in their own countries, which must support any renewal. (Does this illuminate for you why our Constitution says the President does not have a say in the promotion of judges?)
By contrast, academics (not only bureaucrats) may be appointed to the German Constitutional Court. And that court’s judges’ terms were changed to 12 years, non-renewable, when they were permitted to concur or dissent, in 1970.
The Constitution of Nigeria requires all appeal court judges to deliver a written opinion or state specifically that they adopt the opinion of another judge.
Making every judge say where they stand is perhaps seen as some safeguard against bribe-taking by the judiciary – and against lazy judges coasting on others’ work
The South African Constitutional Court has up to 11 judges (at least eight must sit). In its five most recent decisions, only one was unanimous, while one or two judges either concurred but gave separate judgments or dissented in the four others.
Sometimes courts adopt a practice of giving only one judgment.
The first American Chief Justice (Marshall) tried to introduce the practice.
A modern US Supreme Court Justice explained this “consolidated the authority of the Court and aided in the general recognition of the Third Branch as a co-equal partner with the other branches”.
In the 1920s, that court was under attack, leading its members to stick together.
Now, however, dissents and concurrences are common. Justice Ginsburg wrote: “As in civilian European type] systems, we have but one judgment, and we mark it the Court's. But in tune with the British tradition, we place no formal constraints on the prerogative of each judge to speak out separately”.
Even in the UK, it is much less common to have multiple judgments in criminal cases. There is a feeling that in such cases, there really should be one judgment, looking like the “correct one” as the French judge wished.
You may remember that the Supreme Court announced before its judgment in the 2013 presidential election petition that it would be unanimous.
Perhaps the court, as a new court, felt like Justice Marshall. But maybe it was unwise to make that commitment!
Our Supreme Court does much more often have “judgments of the court” rather than of individual judges- hence Waikwa’s tweet.
The same with the Court of Appeal; occasionally one judge gives the judgment and the others concur, without saying more.
I specifically checked constitutional cases – where you might imagine there is more room for disagreement or elaboration - but the situation was the same.
This is noteworthy because one might think that if a case is being appealed, there must be some scope for disagreement.
However, in the (constitutional) Eric Gitari Case, about registering the Gay and Lesbian Human Rights Commission by that name, the five Court of Appeal judges each gave their own opinion. Two were dissenting.
PROS AND CONS
Separate judgments reaching the same conclusion may create some confusion. T
hat American Supreme Court Justice said, “In most matters, it is more important that the applicable rule of law be settled than that it be settled right”.
In our system, there is another issue. Judges make law. But sometimes it is important to know what their reasoning is not just what the result was.
Later cases may turn on the reasoning. But sometimes different judges can reach the same conclusion for different reasons. It may be impossible to identify the underlying reasoning of the court.
Some feel that a single “judgment of the court” has more credibility because readers assume the judges have really put their heads together, discussed the issues and agreed.
On the other hand, sometimes the issues of principle, and how the case is decided, are as important as the outcome. This is probably true of the BBI case.
Other scholars suggest that a single composite, compromise, judgment may be less clear and less nuanced than where individual judges have to spell out their views in detail - and thus less useful in future cases.
Some think that an individual would think more deeply when working alone than if involved in a joint effort. And some have taken the view that strength of individual judgments is the judges being candid about their disagreements.
As Waikwa also tweeted, “The beauty of having appellate judges write individual opinions is that a judge is not able to hide their jurisprudential philosophy and idiosyncrasies”.
On dissenting judgments, some believe these may undermine confidence in the legal system, and create uncertainty in the law. Dissenting may be viewed as judicial self-publicity at the expense of the public. And it undermines the collegiality of the court.
On the other hand, some argue that it introduces an element in democracy into the law, and allows judges freedom of speech.
In Kenya, Justice Joseph Nyamu once said, “... dissenting judgments constitute an expression of independence, freedom of thought and intellect and, second, they may lay the basis for future development of the law.
"Third, they may provide a firm base for future generations not to contain themselves in straitjackets, but to always remember that at the end of the day, that much-sought justice might after all not be in the thunder of the majority judgment, but in the silent breeze of the minority judgment!”
This reality is undoubtedly one motive for judges taking the trouble to write them.
The great Australian Judge, Michael Kirby, said about demanding unanimity amongst judges, “if it is an insistence that judges hide their disagreements from the public they serve, it denies the ultimate sovereign, the people, the right to evaluate, and criticise, judicial choices.”
One writer has said that a dissent reassures the party who loses that their case was given full consideration.
Even in Kenya, concurring and dissenting judgments (though rare) may be cited in later cases.
The judge concerned may have had a particular take on the issues or a general statement that is not affected by its not being in a majority judgment.
So, for example, former Chief Justice Willy Mutunga has been quoted in later Supreme Court cases, even though he was dissenting or concurring.
Some have said that joint judgments tend to be lifeless, and much of the colour of the law is lost.
There was nothing lifeless about the High Court’s decision in the BBI case.
But to have silenced Justice Patrick Kiage in the Court of Appeal would have deprived us of the chance to witness someone who is passionate about the Constitution (and about language).