In 2001, a Nigerian judge was accused of falling asleep during a trial at the International Criminal Tribunal for the former Yugoslavia at The Hague.
Judge Adolphus Karibi-Whyte was the presiding judge in a case in which three men were convicted of “grave breaches” of the Geneva Conventions, which protects civilians and prisoners of war.
The men — Zdravko Mucic, Hazim Delic, and Esad Landzo — were accused of harming Bosnian Serb detainees in a prison camp in Bosnia in 1992.
The accused challenged the fairness of the trial on the basis that Judge Karibi-Whyte had slept during substantial parts of the trial. They argued that, as a result, they did not get a fair trial.
The Appeals Chamber, though it found the complainants had failed to prove the judge was asleep during substantial portions of the trial, said Judge Karibi-Whyte’s conduct was inappropriate for a judge.
“The charges being tried in this case were extremely serious, and the consequences of conviction for the accused were equally serious,” the Chamber said.
“If a judge suffers from some condition which prevents him or her from giving full attention during the trial, then it is the duty of that judge to seek medical assistance and, if that does not help, to withdraw from the case.”
Judge Karibi-Whyte’s term as judge of the ICTY was not renewed and he returned to Nigeria to resume his former position as a judge of the Supreme Court.
Episodes of judges dozing off are common, and many jurisdictions deal harshly with such cases if they cause prejudice to a party, affect the fairness of the proceedings, or amount to a miscarriage of justice. In such instances, the cases are appealed or retried and the snoozing judges may be declared unfit for office.
Many jurisdictions hold that sleepy judges undermine public confidence in judicial proceedings. In 2004, in the case of British judge Michael Coombe who was alleged to have missed vital evidence after falling asleep during a robbery trial, Lord Justice Rose of the Appeals Court said:
“Because the appearance as well as the actuality of justice being done is important, no judge ought in any circumstances to fall asleep during any stage of a criminal trial.”
In another British case in 2006, Judge Michael Baker said it is “catastrophic for appearances if a judge falls asleep”.
But the most famous case is that of an Australian judge, Ian Dodd, who was accused of repeatedly falling asleep while listening to cases over several years. He was nicknamed “Judge Nodd” and was forced to retire in 2005.
In Texas, for example, Judge Larry Craddock was forced to resign in February 2012 after being filmed dropping off during a trial.
The complainant said this was no quick nap on the bench but an extended sleep. Judge Craddock was also accused in 2006 of falling asleep 15 times during another case.
In Louisiana, Judge LeLeshia Alford was suspended in 2006 following allegations that he fell asleep at the bench.
In Florida, Judge Brandt Downey was reported to be sleeping during a murder trial in 1999, and he agreed to step down. In Maryland, Judge Henry Stump was removed in 1960, following charges that he had been intoxicated and asleep on the bench. And so the list goes on.
This article, you might conclude, is not about Kenyan judges. But you would be wrong.
Kenyan judges are also human and liable to slumber, like other judges. Even so, judges falling asleep can have serious consequences such as wrong convictions or sentences, to say nothing of destroying public confidence in court proceedings.
The question is whether the Judges and Magistrates Vetting Board should consider judicial sleepiness as it continues to shake up the Judiciary.