Judges must embrace probity

• No public institution, or even private institution dealing with the public, is exempt from accountability.
• Freedom from interference is a precondition for the integrity of any judicial system.

NO PUBLIC INSTITUTION, OR even private institution dealing with the public, is exempt from accountability. Hence, the Judiciary must also be accountable.

Freedom from political and external interference is a precondition for the integrity of any judicial system. This independence, however, must be balanced by accountability.

The Chief Justice has stated that judges are independent and answerable only to the Constitution and the law. Yet answerability to the law, although covering many acts and omissions, leaves many others untouched. How does one deal with a rude judge? A slow judge? An ignorant judge? A prejudiced judge? An absentee judge? An eccentric judge?

That is why, in recent days, more attention has been paid to judicial accountability. How can it be improved, but in a way that does not weaken the adherence of the judge, and society, to the principles of independence?

One of the cornerstones of a functioning democracy is an independent Judiciary which is able to freely and impartially exercise its role as both protector of the rule of law and guarantor of constitutional and human rights.

As final arbiters and enforcers of constitutional limitations on government, an independent Judiciary plays the important role of protecting individuals against State power. Viewed in this light, the independence of the Judiciary must be constitutionally protected.

Judicial accountability mechanisms are contemplated by the Executive itself and its benefits clearly evident to the public.

However, the principles of judicial independence and separation of powers must always be respected when such mechanisms are being crafted.

It has been suggested that well-defined and publicly known standards and procedures complement, rather than diminish, the notion of judicial independence.

FOR EXAMPLE, RULES TO PREVENT conflict of interest and graft along with appropriate performance monitoring mechanisms, aim to ensure judges act impartially in the adjudication process.

If construed properly, the notion of “judicial accountability” should not be seen as negating “judicial independence”.

Rather, the combination of independence and accountability should foster public confidence in the courts – provided accountability mechanisms satisfy the appropriate standards for autonomy, respect the separation of powers, and are transparent and publicly known.

The need to ensure that judges are “accountable”; that appropriate levels of performance are reached, ethical conduct upheld, and that all of this is demonstrated to the public, is important.

At the same time, such measures should respect the principle of judicial independence, which is crucial to the functioning of an impartial Judiciary.

Kenya should thus contemplate laws on judicial ethics, financial disclosure and judicial discipline. Accountability mechanisms should be contemplated by the new constitution itself.