Calling on judges to resign is heretic

Kenya has had many Constitutional Drafts and the latest was published on November 17, 2009 by the Committee of Experts (CoE) led by Nzamba Kitonga.

As the CoE was based on Chiromo Road, Nairobi, we should for simplicity call the harmonised draft of the constitution, the Chiromo Draft, because it may not be the last.

Though a progressive and excellent working document, Chiromo Draft in calling for resignation of all Judges and reinstatement only after vetting, lit a fuse in the base of our nation-state.

Chapter V of the current Constitution and The Judicature Act, Cap. 8 of The Laws of Kenya provides for the appointment, security of tenure and removal of Judges.

On appointment, one remains a judge till retirement. Removal arises only for infirmity or misbehaviour but on recommendation by a Presidential Tribunal set up for that purpose.

That a Judge has lifetime tenure is the cornerstone of our judicial system and isn’t accidental. In one stroke, Chiromo Draft wants to throw this to the winds.

In the Judicature Act, we clearly state as a nation-state that our legal system is Anglo-Saxon. The world has four main types of legal systems; Anglo-Saxon common law that is practiced in Britain and its former colonies, Romano-Germanic civil law in continental Europe and their former colonies, Sharia law in Islamic countries and Socialist law in Russia and its former satellite states.

These systems may share common ideas and concepts, but Anglo-Saxon has its own peculiarities that have made Britain, USA, Canada and Australia pre-eminent civilisations.

In the preliminary report to Chiromo Draft, the CoE states that in calling for resignation of Judges and reinstatement after vetting, they looked for precedents in East Germany, Bosnia-Herzegovina, Czech Republic and other countries of Eastern Europe. God help Kenya! All these countries of reference were former satellite states of then USSR.

Socialist law applicable in USSR and its satellite states had at its core the legal philosophy that the individual is subservient to the state and that the law and courts are instruments and appendages of the government.

Such lofty ideals like personal freedoms, rights to private property and independent judicial systems were alien. When the USSR Empire collapsed in 1989, Eastern Europe didn’t have judicial system worthy of retaining.

And underpinning the entire Anglo-Saxon judicial system is the independence of the judges. Before the judicial reforms of England in the 1701 Act of Settlement, judges held office durante bene placito (at the pleasure) of the King. Since then, the independence was guaranteed.

Independence means that their decisions are unfettered by the legislature or executive or indeed any other authority other than the application of the law. This independence and impartiality is arrived at from the selection process of judges, their life tenure, attractive remuneration and self-review.

The judges are the last frontier of maintaining civil order in society. We have come a long way from when Thomas Hobbes said that life in society was “… solitary, poor, nasty, brutish and short…” to now when we go to a judge to arbitrate. Chiromo Draft demands that within 30 days of its promulgation, all judges shall resign and become acting as they undergo vetting.

On their resignation, each judge will be subjected to scrutiny by Kenya Anti-Corruption Commission, Advocates Disciplinary Committee, Public Complaints Standing Committee, Judicial Service Commission, Attorney General and the rest of the world.

As a Roman Catholic, I remember with trepidation the Middle Ages Inquisitions. On complaints from anonymous informers, the church burnt many in the stake. Joan of Arc and Galileo Galilei were victims of this inquisition.

The Church many centuries later canonised Joan of Arc and apologised to Galileo. If we demand of our judges to resign and invite the whole world to bring forward complaints, who will stop mad men concocting complaints just because they lost cases before the judges?

Thomas Paine, a 19th Century revolutionary intellectual and Father of America’s Independence was charged with several sedition crimes in England.

In defending him, Thomas Erskine, a doyen of legal practice said that “… every man… dictated to him as truth … address himself to the … whole nation … analyze the principles of its constitution to point out its errors and defects… and warn his fellow citizens against their ruinous consequences ..”

In calling for judges to resign en masse, Chiromo Draft is subverting the legal foundation of our nation-state and all that we stand for. If this be the only reason to vote NO, so be it.

Donald B. Kipkorir is an advocate of the High Court dkipkorir@ktk.co.ke