By Herman Omiti
Article 160 (5) of the Constitution provides that “A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.” The rationale behind this provision is to ensure that judicial officers are free to adjudicate on matters before them without unnecessary fear or favour. This constitutional protection, however, does not give judicial officers the freedom to hide behind the Constitution to insulate themselves from taking responsibility in cases where the judge is found to have acted completely in bad faith and in a biased manner.
In the case of “Peter Ng’ang’a Muiruri v Credit Bank Ltd” where the ruling of the Chief Justice was challenged, Nyamu J observed that “…It would, in my view, be a grave matter for the courts or Judges to insulate themselves against constitutional challenges since public law vindicates in a very special way the rule of law and provides an important pillar of safeguarding, securing and enforcing fundamental rights and freedoms, providing for a way of applicants accessing the courts for this purpose can only enhance our system of justice and cannot possibly demean it! The task cannot also possibly be transferred to any other body except the courts because the courts must remain solely responsible for the lawfulness of what they do!”
Similarly, Michael L. Katherein notes that “to protect the sanctity of the judiciary, otherwise honest judges are driven to shield the misdeeds of their crooked brothers at the bar. Perfectly understandable human nature, yes… But when this behaviour is at the expense of the public trust, it is utterly unpardonable. The courtroom is no place for situational ethics” [Michael L Katherein in “Why you have no Civil Rights and what you can do about it”].
Myth of recusal
There are instances when a judge realises that s/he has an interest in a matter brought before them. A judge who finds himself in such a situation ought to either on his own motion or by being moved by a litigant, recuse himself from hearing the case. This is because such an interest, real or perceived, may lead to a miscarriage of justice. This is part of the ethical code of conduct that guides judges in their duties. However, even where it is clear that a judge should disclose facts bearing upon their impartiality and even where it is necessary for the judge to recuse himself from hearing the case, oftentimes judges decline to do so.
Some scholars have argued that when judges are faced with conflict of interest motions and the need to recuse themselves, more often than not, the motion will fail. Elena Ruth Sassower, notes in this regard that, “They sit on cases in which they have undisclosed relationships with parties, their attorneys, or have interests in the outcome, and do so deliberately because they wish to advantage either one side over another or sometimes themselves.” This is what she refers to as, “The Myth of Recusal”. She observes further that, “there’s next to nothing you can do when you’re before a dishonest judge. He’s not going to respond to a recusal motion with “Hallelujah, you’ve shown me the light. I’ll step down.” His dishonesty will carry through to the recusal motion, which, while asserting his complete fairness and impartiality, he will deny…” (Elena Ruth Sassower, “Without Merit: The Empty Promise of Judicial Discipline”).
The Constitution thus seeks to take care of such instances where a judge decides to be intentionally biased or dishonest by sitting in a case where they know they have an interest which eventually clouds their judgement. Article 168 of the Constitution sets out the reasons for, and the procedure to be followed in the removal of a judge of a superior court from office. Article 168(1) provides that; “A judge of a superior court may be removed from office only on the grounds of: inability to perform the functions of office arising from mental or physical incapacity; a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence; or gross misconduct or misbehaviour”.
The focus of this piece is on the removal of a judge from office on account of gross misconduct, misbehaviour or even incompetence. In such instances, it is possible that such misconduct or incompetence may have occasioned a miscarriage of justice to a litigant. As Sassower observes; “The most serious misconduct by judges is that which is least likely to subject them to discipline. It is not what they do in their private lives, off the bench, but what they do on the bench in the course of litigation… And there are judges who, while presenting a veneer of fairness, are intellectually dishonest. They make rulings and decisions which are not only a gross abuse of discretion, but which knowingly and deliberately disregard “clear and controlling law” and obliterate, distort, or fabricate the facts in the record to do so” [Elena Ruth Sassower (supra)].
Plight of the innocent litigant
The question that then follows, what happens to the innocent litigant who has suffered injustice due to the conduct of a judge who ultimately suffers the consequence of their misconduct through a disciplinary review process? The law does not make any provisions for the victims of judicial misconduct, especially where the same occurs at the highest court such as the Supreme Court. Article 168(2) gives the JSC the power to initiate the removal of a judge either acting on its own motion, or on the petition of any person to the JSC. Where the JSC is satisfied that such a Petition discloses a ground for removal, it is required to send the petition to the President who shall within fourteen days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the JSC appoint a tribunal to carry out an investigation into the conduct of the judge in question then report on the facts and make binding recommendations to the President, who shall then act on the recommendations.
What is lacking in this provision is how to deal with the plight of a litigant whose case has been negatively impacted by the judge’s misconduct since the tribunal appointed under this provision is not a court and therefore has no powers or authority to review the litigant’s case. Even where the judge is found culpable, this does not change the outcome of a ruling, judgment or verdict rendered by the judge; it merely opens the door for an appeal or a review and this is only possible where the judge sits in any court other than the Supreme Court, a process that may be quite costly and time consuming. But even then, the Supreme Court Act and Rules, as they are currently, do not recognise such an appeal or review, thereby leaving the litigant to suffer the consequences of the injustice.
Sassower poses a very fundamental question which to my mind should inform any mechanism put in place to address judicial misconduct. She asks, “How can you make any assessment of how judicial misconduct mechanisms are working unless you reach out to the victims of judicial misconduct who have used them?” The truth is, if you were to ask any such victims to asses our judicial misconduct mechanism, the answer would be obvious. To them, these mechanisms are simply not working. For justice to be served in such a scenario the process should not simply end with the removal of a judge; it should also address the plight of the affected litigant.
The Court of Appeal acknowledged this problem in the case of “Jasbir Singh Rai v S.T.S Rai Civil Appeal No. 307 of 2003” when the court was faced with a similar situation of addressing the rights of complainants where a judge was suspended and thereafter opted to retire due to complaints of misconduct/misbehaviour on his part. In this case, Justice AB Shah JA, as he then was, made a ruling in which a complaint arose and was referred to the Integrity and Anti-Corruption Committee (Ringera Committee). As a consequence of the complaint, justice Shah resigned. Being aggrieved by such a move, the complainant filed an application in the Court of Appeal seeking revision of the judgment arguing that the judgment was obtained through fraud. This application raised very weighty questions of law most of which pointed at the inadequacy of our system to deal with such issues.
The Court of Appeal while making an admission to this inadequacy stated that; ‘…the power to reopen and rehear an appeal is to be found nowhere in the Constitution. It is to be found nowhere in the Appellate Jurisdiction Act.’ The court then went ahead to suggest that the law should be amended to provide for such procedure. Riaga Omollo JA, as he then was, stated that; “…in the end I have myself come to the conclusion that this litigation ended on 30/9/02 when the court gave its judgment. I recognise and appreciate that in some instances, this position may create an injustice to a particular litigant and like an acting president Spry. I must also wish that we have power to recall and review judgments. I am however not saying that we had the power so to reopen and review the judgment in this particular appeal… I am wishing for the power in a generalised way. Perhaps I can at least hope that parliament may in its own good time intervene in the matter… Until such time as such intervention would have come, this motion cannot proceed.’
In “Patrick Gathenya vs. Esther Njoki Rurigi and Attorney General Civil Appeal No. 290 of 2005”, the court pointed out that it had no power to review its own judgments and expressed the need for such power.
Whereas the Supreme Court has the power under Article 163 (7) to reopen and review and even overturn its own decision, the Court has made it clear in “Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others  eKLR”, and “Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 Others  eKLR” that for it to do so is no walk in the park. But even where the complaint is against any other lower court, the Supreme Court lacks the power to reopen and review the judgements of that other court unless the matter falls within the appellate jurisdiction of the Supreme Court. Section 14 of the Supreme Court Act gave the Supreme Court the power to reopen and review the decision of other courts that were decided before it became operational and are embroiled with such complaints. This provision gave litigants the power to make a request for a review in such cases. Such a request had to be filed within 12 months from the date when the Act came into operation. This provided a small window of opportunity to address historical injustices of this nature. Though not adequate, this was step towards the right direction, but the Court threw this it out of the window.
Gap in the law
In the course of the vetting of judges and magistrates, many have been removed for their handling of certain cases. However, whereas the judges have been punished for wrongdoing, litigants have been left to live with the injustice occasioned by the judicial officers in question. The tribunal appointed under Art 168 of the Constitution to investigate the conduct of the judge cannot, even in very clear circumstances where the misconduct of the judicial officer may have affected the outcome of a case, make any corrective award. This leaves a gap in the law where the officer is removed but the rights of the affected parties are not addressed.
Writer is an Advocate of the High Court of Kenya