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Revising our outdated justice system (Part IX)

Monday March 4 2019

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There are two chief ways of compromising the integrity of the justice system. First, by undermining the integrity of this or that judge through bribery, coercion or political pressure. Second, by compromising the selection, appointment and disciplining of judges.

The first way is short-term and has immediate affects. The second way is deeply pervasive, damaging and long-lasting; it is not about corrupting this or that judge, no matter how high, it is about corrupting the core of the process of selection of judges, which is a function of the Judicial Service Commission (JSC).

Article 166 (2)(c) of the Constitution of Kenya says that, ''Each judge of a superior court shall be appointed from among persons who— …have a high moral character, integrity and impartiality.'' A wrong JSC will not be able to find the right judges, but the compliant ones. This would radically undermine the quality of justice…the independence of the Judiciary.

The 2010 Constitution redesigned the spirit, mission and composition of the JSC as one of Chapter Fifteen’s independent constitutional commissions. It is composed of 11 members plus the Chief Registrar of the Judiciary as its secretary.

Unprecedented intense and vitriolic hatred for a 'small' election

One of the members is a male representative of the Law Society of Kenya, elected by his peers. This election is about to happen. It is shocking that despite having candidates who are reputable senior councils, unprecedented hullabaloo has been triggered with vitriolic and intense hatred and pandemonium in social media. This fight is simply astonishing.

Logically, the effort a candidate puts in an election is directly proportional to the benefits he or she derives from that elected position. The animosity, verbal and judicial abuse, envy, accusations and machinations we have seen in this campaign cannot be rationally explained unless there is something hidden at stake.

Could it be that this elected representative, who is a practicing lawyer, has the power to coerce and influence judicial decisions? Is being a member of the JSC and a practitioner compatible? Should this person appear before the same judges he will nominate and possibly discipline? Are we ignoring a blatant conflict of interests?

Judicial officers are not elected by the people; they are appointed. Judges are adjudicators, not representatives. This is the reason why it is misleading to speak of devolution within the judiciary, for there is no power to be devolved. Instead, we may speak of administrative decentralisation or simply expanding and facilitating access to justice when more court rooms are built throughout the counties.

Who guards the guardian?

The vetting, selection, nomination and disciplining of judges is the result of a delicate and elaborate process which is in the hands of the JSC. Thus, the composition of the JSC is the key to judicial independence. By politicising the JSC, we are undermining judicial independence.

According to the rule of law index of the World Justice Project, Kenya is the third-best nation in Africa on two key areas: constraints on government powers and open government. This does not mean our situation is rosy or perfect. It may mean that Africa is doing badly. It may also mean that our government is on constant check.

This is a plus for Kenya; whatever the government decides and does ends up in the public domain and it trickles down to the public, sooner or later. But judges need to be careful, coherent and consistent. Their job is not to frustrate government; it is to make sure things are done according to the law and in the spirit of our Constitution.

These two indicators - constraints on government powers and open government are directly related to judicial independence. In an on-going study, which I mentioned last year, we tried to collate an index to measure judicial independence within Africa.

The indicators are built around the number of decisions against the government in the last three years, appointment and tenure of judges, other competing courts, and the existence of a judicial service commission, its composition and powers.

South Africa, Namibia, Botswana, Ghana and Kenya did quite well. The worst performers were: Sierra Leone, Libya, Niger and Swaziland. By region, the Southern region did best, followed by Eastern Africa and then Western Africa. The worst performing region was Northern Africa.

Now, more than ever, every judge is called upon to practice those virtues and values that can guarantee the professionalism and honesty of their decisions: Courage, prudence, self-control, and a genuine desire to dispense justice. These are the only tools with which a judge can cure constitutional acne, leave a lasting and sustainable legacy, building a body of excellent jurisprudence.

Why such an ugly campaign?

The ugly face this campaign has shown so far could mean the beginning of a scary process of partisan politics within the JSC. This may stop if certain key level playing rules are put in place.

Some senior practitioners have suggested that candidates seeking to sit in the JSC should undertake not to be active partners in a litigation law firms. They should also not sit on panels of parastatal or public corporations. This may help reduce instances of conflict of interests and undue influence on judicial officers.

It may also help if the JSC Code of Conduct publicly provides for disqualification of candidates who may have conflict of interests with the commission. Imposing limits on campaign expenditure and public declaration of financing sources may also help curtail bribery and corruption.

In the end, it may be important to subject this election to similar campaigning rules applicable to Parliament and other elective bodies.

We all want justice to improve and succeed. It seems ironic, but democracy’s sustainability depends on non-elected positions…democracy’s survival is in the hands of appointed judges. But these judges are vetted, nominated and disciplined by a body whose integrity and accountability must be untouched and unquestioned. In the JSC there is so much at stake.

Dr Luis Franceschi, Dean – Strathmore Law School, [email protected]