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JUDICIAL ETHICS AND JUDGES’ CONDUCT
JUDICIAL ETHICS AND JUDGES’CONDUCT: THE COMPLAINTS MECHANISM
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paper presented at the Annual Kenya Judges’ Colloquium,
Mombasa, August 14 – 19, 2011
By
The Hon. Justice (Prof.) Jackton B. Ojwang
Judge of the Supreme Court of Kenya
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Structure
JUDICIALISM AND ETHICS: AN INTRODUCTION
Constitutionalism and Judicialism: Background to the Ethics Question
The Kenya Constitution: Further Background
The Place of Ethics
THE INTERNATIONAL FRAMEWORK OF JUDICIAL ETHICS
THE CONSTITUTION, THE STATUTE LAW, AND THE FRAMEWORK FOR JUDICIAL ETHICS: THE KENYAN CONTEXT
JUDICIAL ETHICS AND THE PUBLIC DEMAND: THE COMPLAINTS MECHANISM
Preamble
The Kenyan Experience and the New Framework of Complaints
Removal from office
Other modes of discipline
The Challenge of Judicial Ethics
EMERGING JUDICIAL-ETHICS ISSUES
Preamble
The Emerging Issues
A quality-quantity conflict, and personal commitment
Personal attitude, and goals of ethics
Institutional arrangements and judicial ethics
Peer-review and preliminary issues of ethics
JUDICIAL ETHICS AND THE COMPLAINTS MECHANISM: THE WAY FORWARD
JUDICIALISM AND ETHICS: AN INTRODUCTION
Constitutionalism and Judicialism: Background to the Ethics Question
It is a truism that, in contemporary times, with a world globalised by technology, the epoch of good governance has landed: its essence is management of public affairs by rational institutional arrangements; limiting executive power, and de-emphasizing the individual’s remit in decision-making; decentralizing national resources and providing for multifarious national autonomies; establishing a framework for rationality in the exercise of executive competence; empowering adjudicative organs, guided by principle and law; subjecting disputes to a judicial process; reforming public institutions. The overall principle describing this new mode of governance is constitutionalism. The political order has been reformed, or is being reformed, to vindicate the principle of checks and balances founded on regularity, legality and constitutional process: the new ideology may be termed constitutionalism.
Even as the era of raw, individual power – as relentless reality determining the direction of governance – is cast to the winds, the new epoch distinctly empowers one institution that was always in place albeit in enfeebled form – the Judiciary. The reason is that it is this institution that, always, had a detailed scheme of guiding-steps for its actions: jurisdictional rules; procedural rules; natural justice; substantive limits defined by statute law; limits imposed by the constitutional law. The moment the epoch of constitutionalism came, the rational path of governance became that which is defined by the judicial mandate. Indeed, constitutionalism has spawned the secondary ideology of judicialism. Judicialism has become the handmaiden of constitutionalism; and it follows that, of the three conventional arms of government, the one which has distinctly benefited from the changing political philosophy is the Judiciary.
Alexander Bickel had described the Judiciary as “the least dangerous branch” [A. Bickel, The Least Dangerous Branch (1962)]; and that was because, subjected as it always was to rule, procedure and jurisdiction, the Judiciary was never, in and of itself, any inherent threat to the rights of the people. The inference to be drawn is that, the plane of governance has shifted, from a raw-power orientation to an institutional-check orientation: and that is, today, the expression of good governance.
2. The Kenya Constitution: Further Background
The foregoing argument, I believe, finds clear support in the Constitution of Kenya, 2010 under which the Judges have taken their oath of office, and which must, today, be taken as the crucial element in the grundnorm whereupon rests the entire legal order. Prior to this occasion, and upon reflecting on the essential character of the current Constitution [in Luka Kitumbi & Eight Others v. Commissioner of Mines and Geology & Another, Mombasa HCCC No. 190 of 2010], I had thus, from Court forum, remarked:
“I take judicial notice that the Constitution of Kenya, 2010 is a unique governance charter, quite a departure from the two [1963 and 1969] earlier Constitutions of the post-Independence period. Whereas the earlier Constitutions were essentially programme documents for regulating governance arrangements, in a manner encapsulating the dominant political theme of centralized (Presidential) authority, the new Constitution not only departs from that scheme, but also lays a foundation for values and principles that must imbue public decision-making, and especially the adjudication of disputes by the Judiciary. It will not be possible, I think, for the Judiciary to determine causes such as the instant one, without beginning from the pillars erected by the Constitution of Kenya, 2010.”
Judicialism is the philosophy that the political and governmental edifice in a country is optimally designed only when its central pillar is the judicial process. The judicial process is, in this case, regarded as a friendly, and people-focused mechanism, because it does not arbitrarily exclude anyone, so long as there is due compliance with rules of locus standi; it does not discriminate between the weak and the strong; it has expedient and objectively-designed procedures for the conduct of proceedings; it is a listening and hearing mechanism; it is sensitive to questions of merit; it resolves all justiciable disputes, including those entailing conflicts within the political establishment; it has a definite claim to legitimacy; it hands down its decisions with finality; it has an appellate structure for self-rectification, or affirmation; it has good cause to demand obedience, of all and sundry. The Judiciary, thus, is the classical instrument of institutionalized governance founded on merit and principle: this is the justification for the doctrine of judicialism.
The governance set-up under the Constitution of Kenya, 2010 is one of constitutionalism, and, ipso facto, a system in which judicialism is a central pillar.
A crucial aspect of the Constitution of Kenya, 2010 (Chapter 4, containing Articles 19 – 59) is devoted to the Bill of Rights, and, apart from the fundamental rights being safeguarded in detail, these rights are functionally linked to other Chapters, which lay responsibility on players, in the upholding of these rights. Chapter 1, for instance, declares the sovereignty of the people, placing the will of the people at the centre of the functioning of the several State organs; Chapter 2 contains the national values and principles of governance, which, again, link up with the fundamental rights; and an obligation is reposed in the several State organs to give effect to these values; Chapter 8 (on the Legislature) requires Parliament to protect the Constitution as a whole, and to “promote the democratic governance of the Republic”; Chapter 9 (on the Executive) requires all executive authority to be exercised “in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.” Upon the Judiciary (Chapter 10), the obligation is placed to ensure that [Art.159(2)(e)] “the purpose and principles of this Constitution shall be protected and promoted.”
The Judiciary’s functioning, within the principle of judicialism, is required [Art.160(1)] to be independent: the exercise of judicial authority “shall not be subjected to the control or direction of any person or authority.” Judicialism founded on the dictates of the grundnorm, is expressed in Article 259(1) which provides that the Constitution is to be interpreted in a manner that: “promotes its purposes, values and principles” [259(1)(a)]; “advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights” [259(1)(b)]; “contributes to good governance” [259(1)(d)].
3. The Place of Ethics
The Concise Oxford English Dictionary, 11th ed (Rev.2009) defines ethics as:
“the moral principles governing or influencing conduct”. And Black’s Law Dictionary, 8th ed (2004) thus defines legal ethics (p.913):
“1. The minimum standards of appropriate conduct within the legal profession, involving the duties that its members owe one another, their clients, and the courts…”
The “ethics question”, clearly, is concerned with true and faithful conduct, in this case, on the part of the Judge, to give fulfilment to the principle of judicialism, and in this way, to comply with the binding terms of the Constitution. The requirements of the Constitution, as the grundnorm behind the legal system, are clear enough: the Judge who takes the oath of office under this Constitution, is to conduct himself and herself with honesty, integrity and competence, to give meaning and fulfilment to these requirements. And, demanding as those requirements are, the Judge is subject to such codes, rules or practices as have been considered at appropriate fora, tested, and found to be consistent with due performance under the oath of office. The demands of judicialism, over time, have crystallized approaches to the discharge of duty, which have been considered in substance, adopted and formalized, as virtually a routine guide to those holding judicial office.
II. THE INTERNATIONAL FRAMEWORK OF JUDICIAL ETHICS
The foregoing background sheds light on the developments at the international level, with regard to judicial ethics: and most relevant in this respect is the effort of an informal group of Chief Justices and Superior Court Judges from around the world (later known as the Judicial Integrity Group), which led to the adoption of the famous Bangalore Principles of Judicial Conduct (2002).
The Bangalore Principles are prefaced with a significant preamble, which cites the very same concerns about the integrity of the Judiciary that run right through the Constitution of Kenya, 2010. In those Principles, certain constitutional values are extolled; these are:
everyone’s entitlement, in full equality, to a “fair and public hearing by an independent and impartial tribunal”;
the importance of “a competent, independent and impartial judiciary to the protection of human rights”;
the fact that “[an] independent and impartial judiciary is … essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law”;
the fact that “public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society”;
the fact that “it is essential that judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system.”
On the basis of such values, the Judicial Integrity Group proceeded to set out certain principles for the ethical conduct of Judges. The principles “presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards.”
In the elaboration of the relevant principles, the most important considerations in the due discharge of the judicial office have been set out:
the Judge is to conduct the judicial function “independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference”;
the Judge is to be “free from inappropriate connections with, and influence by, the executive and legislative branches of government”;
the Judge is to “exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary”.
The value of impartiality constrains the Judge to “perform his or her judicial duties without favour, bias or prejudice”; “to minimize the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases”; to abstain from making “any comment that might reasonably be expected to affect the outcome of [any proceedings he or she is conducting] or impair the manifest fairness of the process.”
On the value of integrity, the Judge is to “ensure that his or her conduct is above reproach in the view of a reasonable observer” and to “reaffirm the people’s faith in the integrity of the judiciary.”
On the value of propriety, the Judge is to “avoid impropriety and the appearance of impropriety in all the judge’s activities”; to “accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”
On the value of equality, the Judge is to ensure equality of treatment before the Courts; and in this regard “shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.” The Judge is required to have an awareness of diversity, and differences arising from various sources in society, such as race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status.
On the value of competence and diligence, it is held that “the judicial duties of a judge take precedence over all other activities”; a Judge “shall devote the judge’s professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court’s operations”; the Judge is to take reasonable steps to “maintain and enhance the judge’s knowledge, skills and personal qualities necessary for the proper performance of judicial duties”; the Judge “shall keep himself or herself informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.”
III. THE CONSTITUTION, THE STATUTE LAW, AND THE FRAMEWORK FOR JUDICIAL ETHICS: THE KENYAN CONTEXT
As already remarked in this paper, the governance obligation of constitutionalism and judicialism presupposes the existence of a stable and fair Court system operating with impartiality and integrity and enjoying the confidence of the public; and such principles are already well-recognized in international norm and practice. The task now falling due is to perceive the Kenyan framework for judicial ethics.
The foundation is the Constitution of Kenya, 2010, a document of the primary character which I had the occasion, judicially, to thus typify [in Joseph Kimani Gathungu v. The Attorney-General & The International Criminal Court, Mombasa H.C.Const.Ref.Appl.No.12 of 2010]:
“A scrutiny of the several Constitutions Kenya has had since Independence shows that, whereas the earlier ones were designed as little more than a regulatory formula for State affairs, the Constitution of 2010 is dominated by a ‘social orientation’, and as its main theme, ‘rights, welfare, empowerment’, and the Constitution offers these values as the reference-point in governance functions. Such a public-values orientation, in my opinion, readily interfaces with the objectives of international law….”
Such is a background of a commitment to ethics, and especially, judicial ethics, in Kenya’s current constitutional set-up. It is necessary, at this stage, to illuminate the details of the place of judicial ethics in the Kenyan constitutional order, and in the operative law intended to fulfil the terms of the Constitution.
The relevant provisions are set out in Chapter 6 of the Constitution, bearing the rubric, “Leadership and Integrity”. Judges and Magistrates are named as “State officers” (Art. 260). The mandate of all State officers “is a public trust” (Art.73(1)(a)); and all such officers carry “the responsibility to serve the people, rather than the power to rule them” (Art.73(1)(b)). The most basic principles to guide such officers are expressly stated (Art.73(2)):
“The guiding principles of leadership and integrity include –
……
objectivity and impartiality in decision-making, and in ensuring that decisions are not influenced by nepotism, favoritism, other improper motives or corrupt practices;
selfless service based solely on the public interest, demonstrated by –
honesty in the execution of public duties; and
the declaration of any personal interest that may conflict with public duties;
accountability to the public for decisions and actions;
discipline and commitment in service to the people.”
The Constitution (Art.75) makes specific provisions regarding “conduct of state officers”; it provides that “a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids –
any conflict between personal interests and public or official duties;
compromising any public or official interest in favour of a personal interest; or
demeaning the office the officer holds.”
In cases of breach, Art. 75 provides for the application of appropriate disciplinary procedures as laid down by law, in respect of the relevant category of State officer.
Article 75(2) of the Constitution is cast in general terms, regarding disciplinary measures to be taken against State officers who are in breach of the rules of ethics; and, as regards the Judiciary, this leaves it to other provisions of the Constitution and to statute law, to provide for specific measures of “discipline”. But an initial examination of such other provisions gives the impression that “discipline,” as opposed to “removal,” is not contemplated for Judges.
Article 168 of the Constitution provides for the removal of Judges:
“(1) A judge of a superior court may be removed from office only on the grounds of –
inability to perform the functions of office arising from mental or physical incapacity;
a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;
bankruptcy;
incompetence; or
gross misconduct or misbehavior.”
The Judicial Service Act, 2011 (Act No. 1 of 2011) carries detailed provisions on “Appointment and Removal of Judges and Discipline of Other Judicial Officers and Staff” (Part.V), and this signifies that whereas the Judicial Service Commission is empowered (s.32) to subject “judicial officers” to disciplinary procedure, “judges” are only subject to investigation by a tribunal appointed by the president, in relation to the sanction of removal (Art.168(5) of the Constitution; s.31 of the Judicial Service Act). The Act defines “judge” as “the presiding officer of a superior court” (s.2); and “judicial officer” as follows:
“’judicial officer’ includes a registrar, deputy registrar, magistrate, Kadhi or the presiding officer of any other court or local tribunal as may be established by an Act of Parliament, other than the courts established to hear and determine disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land.”
The relevant meaning of “discipline” is thus given in the Concise Oxford English Dictionary, 11th ed. 2009 rev.:
“1. train (someone) to obey rules or a code of behavior by punishment or rebuke; punish or rebuke formally for an offence.”
The essence of this definition is that the employer still has an interest in the person subjected to discipline; that person is only being chastised, to improve him or her, and to restore him or her for continued service.
However, after considering the entire body of law on public-office ethics, taking into account also the international experience, the correct position, in my opinion, is that the broader meaning of “discipline” applies to Judges, just as much as it does to “judicial officers”; and it is precisely this element, that should run through this consideration of the complaint mechanism.
Part of the law on public-office ethics is set out in the Public Officer Ethics Act, 2003 (Act No. 4 of 2003), which thus defines ‘public officer’ (s.2):
“’public officer’ means any officer, employee or member, including an unpaid, part-time or temporary officer, employee or member, of any of the following –
the Government or any department, service or undertaking of the Government…”
By s.5(1) of the Act, it is provided that, in respect of the various public-officer categories, the relevant “Commission” “shall establish a specific Code of Conduct and Ethics;” and s.3(4) specifies that:
“The Judicial Service Commission is the responsible Commission for judges, magistrates and the public officers in respect of which it exercises disciplinary control.”
The Judicial Service Commission, indeed, in 2003 formulated the Judicial Service Code of Conduct and Ethics, which was published in the Kenya Gazette as Legal Notice No. 50. The said Code, which is an important part of the applicable law on judicial ethics, thus provides in Rule 22:
“Where an officer has committed a breach of this Code, appropriate action will be taken in accordance with the provisions of the Public Officer Ethics Act, 2003, Judicial Service Commission Regulations or the Constitution as the case may be.”
The scenario emerging is that the position of the Judge, in relation to ethical conduct, is that he or she is amenable to a range of sanctions: removal at one extreme, and other modes of disciplinary action at the other extreme. What remains undefined is the content of such modes of disciplinary action; and such a state of uncertainty is undesirable.
IV. JUDICIAL ETHICS AND THE PUBLIC DEMAND: THE COMPLAINTS MECHANISM
Preamble
Not only does the Constitution predicate itself on the people, declaring: “All
sovereign power belongs to the people of Kenya” [Article 1]; the Constitution expresses this principle in binding obligations imposed on “all persons and all State organs” [Article 2(1)]; and an open-ended remedy for any breach of the Constitution is provided for [Article 258(1)]:
“Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.”
It is thus clear, that complaints, for apprehended breach of State-officer ethics, and more particularly judicial ethics, may well be made by virtue of Article 258(1) of the Constitution. A more specific framework, however, has been provided for.
The Kenyan Experience and the New Framework of Complaints
Removal from office
The Constitution (Article 168(2)) entrusts the responsibility for initiating the removal of a Judge from office exclusively to the Judicial Service Commission. The Commission may, in that regard, act on its own motion, or alternatively, “on the petition of any person.” Such a petition is to be addressed to the Judicial Service Commission, and is required to comply with certain formalities; it “shall be in writing, setting out the alleged facts constituting the grounds for the judge’s removal”. A complainant through petition moves the Judicial Service Commission to deliberate upon the gravamen; and where the Commission is satisfied that the petition discloses a ground for removal, it shall send the same to the President (Article 168(4)). This will be the beginning of a formal, public inquiry on the complaint against the Judge in question. The President is to suspend the Judge from office and, acting upon the recommendation of the Commission, appoint an inquiry tribunal, in accordance with Article 168(5) of the Constitution. The tribunal moves expeditiously to conduct its proceedings, and to make recommendations on removal or non-removal, to the President. The President is to take action in accordance with the recommendations of the tribunal (Art.168(9)), unless in the meantime the subject Judge has lodged an appeal in the Supreme Court (Art.168(8)); and in the event of such appeal, the President shall take action in accordance with the decision of the Supreme Court.
The tribunal’s procedure leading to the determination of a removal petition is set out in s.31 of the Judicial Service Act, 2011 (Act No. 1 of 2011), and in the Second Schedule thereto.
The foregoing framework for the removal of a Judge from office is consistent with the institution-based, rights-protective character of the Constitution already referred to herein: a collective organ guided by the governance values of the Constitution (s.13(2), Judicial Service Act) first determines the merits of the removal petition; the complaint is resolved through a regulated tribunal process; the tribunal’s decision is amenable to appeal.
Such is a progressive development from the position prior to the promulgation of the Constitution, on 27th August, 2010, when the individual occupying the office of Chief Justice was solely responsible for causing the President to appoint a removal- tribunal for a particular Judge, and when such a Judge had no appellate recourse, from the determination of the said tribunal (see the Report of the Ethics and Governance Sub-Committee of the Judiciary (Chair: The Hon. Justice J.W. Onyango Otieno) (Nairobi: Jan.2006), pp. 18-20). Of the earlier position, the Justice Onyango Otieno Sub-committee thus noted (Report, p.19):
“As the law stands at the present time, the allegations or charges on the basis of which the President institutes a tribunal to investigate the conduct of a judge are presented to the President solely by the Chief Justice. In other words, it is the Chief Justice alone who decides that the allegations [made against the subject Judge] prima facie justify the removal of [the] judge from office. There is absolutely no indication or guidance under Section 62(5) of the [1969] Constitution as to how the Chief Justice is expected to go about establishing a case for the removal of a judge. The matter is left entirely in the…discretion of the Chief Justice and there would appear to be even no obligation whatsoever imposed on the Chief Justice’s exercise of this power to observe the rules of natural justice. Accordingly, the absence of express constitutional or statutory provisions regarding the exercise of this power is open to abuse and can lead to a miscarriage of justice.”
Other modes of discipline
Although, as already noted, removal may appear as the glaring sanction facing a Judge, under the primary law, I have argued that such law has not precluded a wide range of disciplinary recourses. The current Judicial Code of Conduct and Ethics (2003) clearly presupposes that such disciplinary measures may be applied; and the Judicial Integrity Group’s Bangalore Principles too, convey the principle of there being a scope for reform in judicial conduct, and the variability of disciplinary situations.
As the focus of the current Judicial Service Code of Conduct and Ethics is the individual Judge, it is to be assumed that there will be, put in place, the appropriate institutional arrangements for the enforcement of that Code. Today, the requisite institutional set-up is, certainly, the Judicial Service Commission established under the Judicial Service Act, 2011. Since such a structured, and duly-empowered institution had not existed in 2003 when the Judicial Service Code of Conduct and Ethics was published, it follows that this instrument was ahead of its time, and so it could not, in practice, serve as a regular basis for enforcing judicial ethics. It is unsurprising, hence, that the “enforcement” of judicial ethics, well up to the date of promulgation of the new Constitution (2010), has been essentially an individual-Judge enterprise, without any object of enforcement other than the removal of Judges from office, for one reason or another. It is not surprising either, that an institutional basis for the application of a wide range of disciplinary measures, for Judges, has yet to be developed; and any member of the public bearing a grievance would have found solutions in nothing short of the removal of the Judge.
The Challenge of Judicial Ethics
The cardinal role of the Judiciary in any contemporary scheme of “good
governance”, underlies the significance of judicial ethics in Kenya under the current Constitution. The historical context depicted in this paper has shown that, even prior to the adoption of the Constitution, one of the Judiciary’s main challenges was the maintenance of ethical conduct, as a basis of public confidence in the Courts.
The Report of the Committee on the Administration of Justice (Chair: The Hon. Mr. Justice R.O. Kwach) (Nairobi, 1998) devoted its attention to well-recognized questions touching on the subject of judicial ethics: judicial rectitude (pp.9-12); performance appraisal, incentives and training (pp.13-26); allocation, disposal and follow-up of cases (pp.40-43); making the Judiciary consumer-friendly (pp.54-57). Seven years later the Report of the Ethics and Governance Sub-Committee of the Judiciary (Chair: The Hon. Mr. Justice J.W. Onyango Otieno) (Nairobi, 2006) carried a dedicated examination of issues of judicial ethics: integrity of staff and Court processes (pp.6-16); cases of alleged corruption and lack of integrity (p.17); disciplinary measures and process for Judges (pp.18-24); a litigants’ charter (pp.35-40); a comprehensive reform matrix (pp.41-82). And some five years later The Final Report of the Task Force on Judicial Reforms (Chair: The Hon. Mr. Justice William Ouko) (Nairobi, 2010) devoted its attention to: appointment, discipline and removal of Judges (pp.23-32); case backlog and management (pp.33-60); performance management (pp.65-72); corruption, ethics and integrity in the Judiciary (pp.73-83).
Notwithstanding the clear shortcomings in the legal framework for the enforcement of judicial ethics, which the several investigation panels had identified, redressive action has not been taken. On the question of the range of disciplinary measures that may be taken against a Judge, the Ouko Report (2010) stated (p.28):
“Disciplinary action should generally follow complaints that do not warrant the removal of a Judge from office. Such grounds include less serious misconduct, misdemeanor or unprofessional conduct. Under the current legal framework, the Constitution provides for the procedures for removal of Judges only, and there are no equivalent procedures for disciplinary action against a Judge for misconduct not warranting removal…The effect is that disciplinary control over Judges is the responsibility of the Chief Justice as the head of the Judiciary. However, this role is exercised in a limited manner, and is discretionary, for instance, through transfers, withdrawal of official work, refusal to grant permission to attend conferences or workshops or refusal to grant leave.”
Such are not, quite clearly, proper enforcement measures for the maintenance of judicial ethics; they are not only random and trifling, but are of a grasping type, such as may lead to abuse of discretion. It is here that the main challenge of judicial ethics lies: to set up a regular procedure for disciplinary action falling short of the removal of a Judge from office. In this regard, the following proposal of the Ouko Task Force is to be commended (p.29):
“A Complaints Sub-Commission of the JSC be created to continuously receive, investigate, evaluate and act upon complaints against Judges, other judicial officers and staff.”
The framework and procedure of such an organ of the Judicial Service Commission may be so designed as to allow for confidential hearings, peer-review, counselling, and suitable sanctions.
V. EMERGING JUDICIAL-ETHICS ISSUES
Preamble
Against the background of the main principles on judicial ethics – independence, impartiality, integrity, propriety, competence and diligence – the reality which causes the public’s lack of confidence in the Judiciary takes the following forms: unfair decisions; bias; conflict of interest; repulsive judicial conduct; corruption; collusion; disreputable associations; unwarranted exclusion from the seat of justice.
Whenever such scenarios are perceived to exist, the confidence of members of the public in the Courts is undermined, and, as an immediate consequence, there will be complaints. Such complaints, under the existing law, are likely to take the form of demands for the removal of a Judge. However, these complaints, by their very nature, carry gravamina of an infinite range of gravity; and it will fall squarely within the mandate of the Judicial Service Commission to design an appropriate scheme of disciplinary measures befitting each category.
Obviously, the Judicial Service Commission will need to take into account the multiplicity of ethical issues which have been identified in the several committee or task-force reports already referred to herein. But in the more limited inquiry in the instant presentation, which has benefited from dialogue with colleagues*on the Bench, some particular elements touching on the theme of judicial ethics have emerged. These may be considered briefly.
2. The Emerging Issues
A quality-quantity conflict, and personal commitment
The judicial task is not a standard function, merely requiring the discharge of a load: it is qualitative in every sense, demanding focused mental presence, deliberate attention to issues, experience, and learned apprehension of context and of comparative knowledge and practice. Attainment of such a special objective expresses itself most clearly in the quality of the Ruling and the Judgment. Therefore, it must be regarded as an ethical question, what standard of opinion issues forth from the Judge’s hand.
It may be postulated that the quality of a Judgment is determined by patient hearing of evidence and submissions, and methodical analysis of fact, in tandem with a clear appreciation of governing law and practice, taking into account pertinent values, and the unique circumstances of each case. This calls for a constant presence of mind, and, most certainly, an investment of time in each and every case.
A failing in such a qualitative obligation is, in my opinion, a failing of an ethical character. Yet, inherently, such an obligation turns on the personal commitment, in terms of time, patience, learning and mentality.
How is such an ethical obligation to be discharged? This will remain a challenge, and a constant management agenda-item before the Judicial Service Commission. The reason is that there is a glaring conflict between the resources available to the Judge, on the one hand, and the colossal burden of work occasioned by the frequency of litigation, on the other.
The Judge is in a dilemma. The standard complaint against Judges is that they have not delivered judgments expeditiously; but the numbers of files with pending judgments are so large, in most cases, that if expedition is the main object, then quality will be missing. How should the Judge resolve the ethical issue occasioned by this conflict between quality and quantity? This must become a legislative and management question, relating to the number of Judges available to deal with the case-load.
Personal attitude, and goals of ethics
In the state of dilemma above-described, the Judge’s personal attitude is relevant. To-date, it is a fact that the High Court, which is the prototype heavy-duty judicial institution, has only some 40 Judges, to serve a population of 40 million, that, with growing competition for economic and social space, has increasingly sought judicial redress for disputes.
Whether a Judge in such a position places a premium on quality or quantity, in the disposal of cases, could become a matter of attitude – regardless of the impacts on the ethical obligation. It is conceivable, one Judge may put a premium on the “quality” element of ethics, while depreciating the obligation to clear the entire load of cases falling to him or her; another Judge could work to the reputation of not having a single pending Judgment, by quick and rushed delivery; yet another could “work-to-rule”, doing only the very minimum which forecloses assessment as an incompetent Judge.
Institutional arrangements, and judicial ethics
To deal with the relevant issues of judicial ethics, the role of institutional arrangements is all-important. Whereas the individual Judge must take the primary responsibility for those questions of ethics which turn on conscience, it falls to the management-establishment to bring equity to bear on allocations of work, and assignment of responsibility. In view of the large volume of work, and the continuous filing of many cases, there should be a co-ordination of information systems, enabling a proper tracking of the incidence of Court-work.
Peer-review and preliminary issues of ethics
The particulars of ethical issues discussed herein, indicate that the problem is complex, and calls for constant monitoring and establishment of remedial measures: a task that does not lend itself to single-act responses, such as just the removal of a Judge from office. The problem of ethics, at the preliminary stage, requires free flow of information, and in-house sharing of experience; and in this context it may be necessary to establish a peer-review mechanism, involving a limited membership that is partly open-ended and may include additional members, from time to time.
VI. JUDICIAL ETHICS AND THE COMPLAINTS MECHANISM: THE WAY FORWARD
Beginning from the foundation principles upon which the judicial process rests, this paper has examined the subject of judicial ethics, indicating its ingredients, and considering how it is provided for in Kenya at present. The discussion has highlighted the difficulties entailed in the current arrangements, and has in particular, considered the complaints mechanism.
It emerges that the complaints mechanism is essentially rudimentary, being concerned only with “removal of a Judge.” Such a sanction must, in principle, be reserved only to the most serious breaches; but below that level, there will be an infinite range of possible infractions against the rules of ethics. It is, indeed, the frequent breaches at that lower end of the impropriety-scale, that so vexingly touch on members of the public, leading to their lack of confidence in the Judiciary.
The way forward, therefore, is to refine and flesh out the law, procedure and remedies, for the lower end of infringement of the Code of Ethics; and to institute regular mechanisms of monitoring, detection and enforcement. That task primarily falls to the Judicial Service Commission [by virtue of Article 252 of the Constitution of Kenya, 2010], which, of course, would benefit from deliberations within the Bench as a whole. From this paper, it emerges that the comprehensive scheme of the law and practice of judicial ethics will depend, at a certain level, on legislative and resource-inputs from the other arms of Government.
* I acknowledge the privilege of sharing my thoughts on the scheme of this paper with my
colleagues on the Bench: The Hon. Mr. Justice P.K. Tunoi; The Hon. Lady Justice M.K. Koome; The Hon. Mr. Justice P.Kihara Kariuki; The Hon. Mr. Justice I. Lenaola, and The Hon. Lady Justice R.N. Sitati. Any shortcoming, however, remains my responsibility.
§ Annual Kenya Judges’ Colloquium 2011
Cited documents 2
Act 2
| 1. | Judicial Service Act | 249 citations |
| 2. | Public Officer Ethics Act | 206 citations |