Recusal of a Supreme Court Judge who is a member of the Judicial Service Commission in a case where the Judicial Service Commission is a party
Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR
Petition No. 34 of 2014
Supreme Court of Kenya
D K Maraga, CJ; P M Mwilu, DCJ; M K Ibrahim, J B Ojwang, & N Njoki, SCJJ
July 3, 2018
Reported by Kakai Toili
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Judicial Officer - judge – recusal of a judge of the Supreme Court – application for the recusal of a judge of the Supreme Court – grounds for recusal – membership to the Judicial Service Commission – where the Judicial Service Commission was a party to a case - whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to recuse himself or herself from a case in which the Judicial Service Commission was a party – Constitution of Kenya, 2010, article 163 & 171(2): Public Officers Ethics Act, section 10 (1)
Judicial Officer - judge – doctrine of the duty of a judge to sit - what was the scope of the doctrine of the duty of a judge to sit
Judicial Officer - judge – recusal of a judge – application for recusal of a judge – what was the purpose of an application for the recusal of a judge and whether an application for recusal of a Supreme Court Judge could be determined in a similar manner as that of a judge of other superior courts
Constitutional Law – superior courts – Supreme Court – quorum of the Supreme Court – effect of lack of quorum - what was the effect of failure of the Supreme Court to determine a matter due to lack of quorum
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to fair hearing - when balancing the rights of different claimants before a court over the same right - what parties were to be given priority in the enforcement of the right to fair hearing when balancing the rights of different claimants before a court over the same right - Constitution of Kenya, 2010, article 19 (3) (a) & 21 (1)
Judicial Officer – judges – removal of judges from office - what was the procedure of removal of a judge from office - Constitution of Kenya, 2010, article 168
Brief Facts:
The Petitioner’s case had been referred to the Employment and Labour Relations Court, which upheld her claim that the 1st Respondent (JSC) had violated her fundamental rights and freedoms in removing her from office without a basis in law. The Court of Appeal reversed the decision of the Employment and Labour Relations Court leading to an appeal pending before the Court. The Petitioner prayed for judgment setting aside the Court of Appeal’s decision.
The JSC filed the instant Application seeking orders that the time-span for filing the Application be extended beyond the limit earlier prescribed, that most of the Court’s Judges, in the full seven-Judge bench of that Court recuse themselves from the hearing of the Petitioner’s Appeal and that the costs of the application be provided for.
The JSC proffered the following justifications for seeking the recusal of the Court’s Judges:
(a) Chief Justice as Chairperson of JSC and the Deputy Chief Justice as the Court’s representative in JSC, had been involved in JSC’s deliberations which JSC took the decision to file the instant Application
(b) Lady Justice Njoki had active pending litigation against the JSC
(c) Justice J.B. Ojwang had 3 pending disciplinary proceedings with the JSC.
(d) Justice Lenaola recused himself from hearing the appeal, having been a member of the JSC at the material time that the Petitioner’s case was before the JSC.
Issues:
- Whether a judge of the Supreme Court who was a member of the Judicial Service Commission had to recuse himself or herself from a case in which the Judicial Service Commission was a party
- What was the scope of the doctrine of the duty of a judge to sit?
- What was the purpose of an application for the recusal of a judge?
- What was the effect of failure of the Supreme Court to determine a matter due to lack of quorum?
- What parties were to be given priority in the enforcement of the right to fair hearing when balancing the rights of different claimants before a court over the same right?
- Whether an application for recusal of a Supreme Court Judge could be determined in a similar manner as that of a judge of other superior courts.
- What was the procedure of removal of a judge from office?
Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 22
1. Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
Held:
- The Court had a special constitutional mandate which could not be delegated to any other forum in the entire governance set-up. The Court was guided by certain precious values, which provided the context within which it took ultimate responsibility for matters of dispute settlement in accordance with the law. The instant matter was not one calling for the recusal of any Judge of the Court. Committed to the judges’ oaths of office, the Court would pronounce itself unbiased and ready and willing to own up to Kenya’s constitutional mandate of dispensing justice in matters falling within its jurisdiction.
- The concept of fundamental rights is a subject of constitutional safeguard and a core pillar upon which the Court’s mandate is founded. The rights in question were inherently and expressly attributed to citizens as the legatees of good governance and democratic process. On that account, all rational and tenable perception of the question of access to the judicial dispute-resolution process, had to be placed on balancing scale ensuring the entitlement of the citizen to justice, fair trial and constitutional safeguard. The cause of the individual who came knocking on the doors of the Judiciary was the very first consideration in determining whether or not a hearing fell due.
Per M K Ibrahim, SCJ: - The doctrine of necessity was more pronounced in the instant matter and it was amplified by the Constitution. The preamble to the Constitution was unequivocal that it was the People of Kenya who gave unto themselves the Constitution. They gave unto themselves the Constitution in its entirety. At article 163 of the Constitution, the people of Kenya established the Court, consisting of 7 justices (the Chief Justice, the Deputy Chief Justice, and five other Judges). The Constitution also established the Judicial Service Commission (JSC), with its membership composition clearly stipulated under article 171 (2) of the Constitution. A scrutiny of that membership clearly showed that at any given time 2 members of the Court had to be JSC Commissioners.
- Among the Court’s Judges, the Court would or could have former JSC Commissioners. It could not therefore be stated in general terms that any Judge of the Court who sat in the JSC would, as a matter of cause, not adjudicate in a matter where the JSC was a party. Such a pronouncement would be a total mockery of the sovereign will of the people of Kenya who established the two institutions in the Constitution and willed that they carried out their various functions simultaneously.
- The doctrine of the duty of a judge to sit, though not profound in Kenya’s jurisdiction, every judge has a duty to sit in a matter which he duly should sit. Recusal should not be used to cripple a judge from sitting to hear a matter. That duty to sit was buttressed by the fact that every judge took an oath of office: to serve impartially and to protect, administer and defend the Constitution. The doctrine recognized that having taken the oath of office, a judge was capable of rising above any prejudices, save for those rare cases when he had to recuse himself. The doctrine also safeguarded the parties’ right to have their cases heard and determined before a court.
- There was a criticism of the doctrine of the duty of a judge to sit for being subject of abuse by judges, so as to sit in matters when it was blatantly clear that they were biased and ought not to have sat. However, where judiciously invoked, the doctrine was a key component of constitutionalism. All judges of the Court, members of the JSC or former members, had a duty to sit in the matter so as to affirm constitutionalism.
- Judges too, as individual persons, enjoyed all the rights in the Bill of Rights. They too enjoyed the protection provided by article 22 of the Constitution to approach the High Court where they felt their Rights had been violated. A person did not waive the protection of article 22(1) when he/she became a judge. Consequently, a judge who pursued his/her constitutional rights protected by the Bill of Rights could not have that used against him/her as a ground for recusal. Membership in the JSC by a judge in the Court or any other Court was a constitutional imperative and as such it could not be used without very good and valid reasons to exclude such a member of JSC from sitting in a matter where the JSC was involved.
- An application for recusal should not seek to affirm the decision of the court/tribunal whose decision was subject of appeal. An application for recusal was a shield to protect the applicant’s interest so that his/her matter was heard by an impartial court. It was not a sword to be wielded by an applicant to steal a match and deny a chance to the other party. Hence by praying that the effect of the Application will be the affirmation of the Court of Appeal decision, the Applicant sought to go beyond the genuine province of a recusal motion.
- The fact that 3 judges recused themselves from hearing the matter in Kalpana H. Rawal, Philip Tunoi and David A. Onyancha v Judicial Service Commission and the Judiciary, (2016) eKLR did not by itself affirm the decision of the Court of Appeal on the retirement age of judges appointed before the promulgation of the Constitution. That was clear and certain from the final orders of the Court in that matter. As the matter before the Court was an interlocutory application, the recusal and inability of the five-Bench to determine the applications meant that, de facto, the Court of Appeal judgment remained in force. The Applications in the Court were not spent or determined but remained in abeyance until another Bench was empaneled.
Per Njoki Ndungu:
- Pursuant to article 25 (c) of the Constitution, the right to a fair trial was non-derogable. All persons who came to the Court were entitled to a fair hearing whether the matter instituted was criminal or civil in nature. The right to a fair trial set out in article 50 (1) and (2) of the Constitution were the same and were both non-derogable by the provisions of article 25 of the Constitution. As such, when an individual citizen petitioner rightly approached the Court, seeking to assert their constitutional rights, the Court would be hard-pressed to turn them away on the basis of claims of bias by a respondent State organ.
- There was a positive duty by the State to ensure that every Kenyan had the right to fair hearing which involved the right of appeal where conferred by the law or the Constitution. That obligation included the Judiciary’s own participation as a State organ. The obligation equally applied to the JSC that stemmed from article 21(1) of the Constitution. Article 19 (3) (a) of the Constitution was categorical that the rights and fundamental freedoms in the Bill of Rights belonged to each individual.
- In the course of enforcement of the right to fair hearing, when balancing the rights of different claimants before the Court over the same right and because of the personal nature of rights, priority had to be given to:
- The parties that were directly affected by the violation of that right
- Other parties to the suit that were indirectly affected, such as interested parties.
- The general public.
- The interests of the State.
- JSC was a state organ which was defined in article 260 of the Constitution as a commission, office, agency or other body established under the Constitution. JSC was established under article 171 of the Constitution. It was also listed in Chapter 15 of the Constitution which pertained to commissions and independent offices. Under that chapter, pursuant to article 249 of the Constitution, JSC was supposed to protect the sovereignty of the people, secure the observance by all State organs of democratic values and principles and promote constitutionalism. It was unclear what prejudice JSC would suffer if the Court heard the instant matter. The Petitioner herself had not raised the issue of an impartial bench, bias or any prejudice that would arise if the bench as constituted sat on her matter. It therefore baffled the mind how JSC could claim bias in the face of an individual’s right to a fair hearing.
- JSC could not claim prejudice or bias when an individual citizen was seeking to exercise her constitutional right to be heard. That flew in the face of securing democratic values and principles and promoting constitutionalism. In addition, JSC had not sufficiently demonstrated the nexus between the interest and the resulting apprehension of bias. There was no nexus established between the facts of the relevant matter between the Court and the JSC and the instant matter. To find that membership of a judge in the JSC, automatically disqualified him or her on the basis of perceived bias from hearing and determining any matter relating to the JSC would be to stretch the perception of bias too far. That would inevitably mean that matters involving the JSC would, more often than not, be determined by the Court of Appeal as the final Court; an absurdity and outright contravention of the Constitution.
- A party was entitled to be heard by a Court before which he or she appeared even though it was perceived to be conflicted, if there was no other Court to which he or she could go. The doctrine of necessity and the duty to sit would have to apply.
- There was a presumption of impartiality of a judge. They would be able to disabuse themselves of any irrelevant personal beliefs or predispositions when hearing and determining matters. The role of a judge was to ensure that cases were determined in accordance with the Constitution and the law. An application for recusal of a Supreme Court Judge could not be determined in a similar manner as that of a judge of the other superior courts due to the special consideration that had to be given to its quorum. The Court was the final bastion in the architectural design of Kenya’s Constitution that protected and defended the rights of every citizen and enforced the obligations of the State towards them. Its intervention, when rightly invoked, as in the instant case ought to be available to the citizens of Kenya.
- The Court had previously dealt with matters in which the JSC had been a party and no issue of conflict of interest had arisen. The fact that the JSC did so in the instant case raised an eyebrow and might even be construed as cherry–picking an adjudication fora or forum shopping which the law frowned upon. Article 168 of the Constitution concerned removal of a judge from office. That removal could be initiated by the JSC on its own motion or upon petition by any person to the JSC. If satisfied that the petition was merited, the JSC sends the petition to the President. Within 14 days after receiving the Petition, the President had to suspend the judge from office acting in accordance with the recommendation of the JSC and appoint a tribunal.
- Article 168(8) of the Constitution allowed a judge who was aggrieved by a decision of the tribunal appointed by the President, to appeal against the tribunal’s decision to the Court within 10 days after the tribunal made its recommendations. The Court would not have to down its tools merely because the JSC could be a party to such cause. If the Court downed its tools in an article 168 (8) petition, merely because the JSC was a party to that suit, that would be tantamount to the Court abdicating its constitutional duty. It would be equivalent to violating both the Judicial Code of Conduct which revered the oath of office taken by judges and section 10(1) of the Public Officers Ethics Act which required judges of the superior courts as public officers to carry out their duties in accordance with the law.
Application dismissed
- Petitioner’s Appeal to be fixed for hearing on priority basis.
- Costs of the Application to abide the determination of the main cause.