Quest for independence is ‘an invitation to struggle’

The institution can answer back, judiciously, fairly and firmly

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Following a protracted stand-off between Judiciary and the Presidency, Justice Mohammed Warsame (left) was sworn-in last month following a court order. Properly functioning, JSC can a powerful tool against Executive interference in judicial affairs.

Prof Yash Ghai and Jill Cottrell-Ghai

‘Is [President] targeting Supreme Court?’

‘They know nothing about it and are making our Country unsafe. Our great law enforcement professions MUST BE ALLOWED TO DO THEIR JOB. If not there will be only bedlam, chaos, injury and death.’

‘MPs renew attack on Judiciary ‘over constant meddling.’

‘The judges are “divorced from reality” and are “hard-left activist judges.’

‘Yet some judges seem to believe that they can ignore parliament’s wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’. That appears actually to mean that they can ignore parliament when they think it came to the wrong conclusion.’

Readers will probably realise that not all these are from Kenya. Numbers 1 and 3 are. Number 2– as the CAPITAL LETTERS probably hint – is a Trump tweet. Number 4 is what three Australian Ministers (perhaps) said, which got them into hot water. The last is by the current British Prime Minister when she was Home Secretary (Minister of the Interior you might say).

Nor is this a new phenomenon. In the 1990s, a Brutish newspaper referred to what it said was a “sickness sweeping through the senior judiciary – galloping arrogance”. And apparently in 1929 the Permanent Secretary to the Lord Chancellor (head of the judiciary in the UK) wrote, “In recent years … it has been difficult for the State to obtain justice from the judges of the High Court. It is not too much to say that in recent years, the weight of prejudice against the State in the minds of many members of the Court of Appeal and judges of the High Court has been such as seriously to affect the administration of justice.” But this was not made publicly.

It must be said that comments in Kenya are not as brutal as they have been in other countries including in the UK. When an English court held that Parliament must be given a chance to vote on the expected Brexit motion, one newspaper called the judges “Enemies of the people”. Judges were reported as having concerns for their safety in court (51 percent), while only 2 percent felt valued by the government. As commentators observed, this is hardly the way to encourage good people to apply to be judges.

The era of social media can only make pressure on judges more intense.

What can the judiciary do?

They can of course answer back. It is hard for an individual judge to respond to criticism of his or her conduct. Those who do often find themselves in return criticised. Discretion is the better part of valour generally in this context.

Interestingly, however, the European Court of Human Rights considered that it was not necessarily wrong, or a violation of freedom of expression, for some Belgian judges to sue a journalist for particularly virulent criticism. In Kenya, however, this course of action would probably not be available, because the various criticisms, whatever one thinks of them, are usually expressed in relation to the broad class of “the judiciary”. Anyway, most people would agree, we suggest, that the law of defamation is not the solution to the problem.

Judges should not engage in writing newspapers. And they must not try after the event to explain decisions. They speak through their decisions, not through commentaries

But it is generally thought better that a body not personally involved is better placed to reply to criticism. Associations of judges, Councils of the Judiciary (for us the JSC is the equivalent) or chief justices are best placed. And, of course, these should not express views on individuals if there is a risk that they will thereafter be called upon to rule on the individual’s behaviour. 

In general terms, however, statements of defence can be appropriate. For example:

“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.” 

“Convictions are made based on the weight of the evidence provided by the prosecution and not by Friday arrests, constant blame-games and bashing of the courts.”

The first of these is the US Chief Justice Roberts in response to President Trump. The second is our own Chief Justice Maraga in response to the DPP recently. The CJ also criticised the way the cases were filed, with 30 people charged in one charge sheet. It may be unwise to respond in such detail, obscure to the ordinary citizen, to whom such responses are essentially directed. Joinder of accused is a matter that the court can deal with, deciding whether the cases should be separated. Similarly, it may have been verging on the undignified to rebut the President’s own unworthy comments by saying, “If the leaders are tired of having a strong and independent judiciary, they should call a referendum and abolish it altogether.”

Chief Justices are not the only possible responders. And, as Head of the Judiciary, a CJ ought, we venture to suggest, to be restrained, lest his utterances lose their value by being made too often. Indeed, it seems likely that the public will take a similar view of critics, feeling that they are “at it again”. However, a total silence in response is no doubt a risky approach.

But, while all and sundry, particular those on the bench, should not wade into the fray, it does not follow that the CJ should respond. Justice Michael Kirby describes the response to quite extraordinarily virulent attacks in the High Court of Australia (its highest court) after the Mabo decision on indigenous land rights. He says the attacks, “eventually called forth defences of the High Court of Australia by judges and retired judges, the organised legal profession, leading members of the Bar, a former Governor-General, legal academics, a few members in Parliament, selected editorialists and even a law student”.

Do we have any retired judges (except former CJ Mutunga) who would command enough respect?

The legal profession is another possible source of informed support. Indeed, some have come to the defence of the judiciary, including former President of the Law Society Isaac Okero, who said “Any time the Judiciary comes under attack, all Kenyans should be worried because then that is an attack on the rule of law and an attack on our democracy.”

The American Bar Association has produced a guide called ‘Rapid Response to Unfair and Unjust Criticism of Judges.’ It proposes that the local professions should be prepared to tackle unjust criticism, not wait until it occurs. It suggests how to decide whether a response is wise, and how responses might be made (through press conference, letters to the media etc).

The judiciary itself ought perhaps not to try to activate this sort of response nor that from academics, still less from civil society or journalists. The Australian former High Court judge quoted earlier said “One technique is for the judge to rely for support on academic lawyers or politicians or journalists. But to sup with these allies requires a long spoon. Their support may emerge spontaneously. It is best, though, not to solicit it.” It is those who dine with the Devil who are supposed to have long spoons!

What else can the judiciary do?

Justice Michael Kirby reviewed some options for the judiciary. He began by being very firm that, caving in and doing what politicians ask is not acceptable “This would be a complete abdication of the judicial function.” In Kenya’s case it is rarely clear what is being asked.

Doing nothing was equally wrong, he suggested, “Collectively and individually [judges] have an ultimate duty to protect the integrity and independence of the judicial institution.”

Kirby had some reservations about relying on Chief Justices: “They usually lack the skills to mix it with political or other critics. They typically share a concern that an endeavour to do so would diminish them and their office. This concern is not misplaced. Reticence in public debate and controversy is what citizens generally expect of their judges.”

The modern approach to many problems is PR – public relations. There is, of course, much too much stuff being put out by agencies of all sorts thorough so-called public relations experts of often dubious quality. Judges should not engage in writing newspapers columns or letters to the editor. And they must not try after the event to explain decisions. They speak through their decisions, not through commentaries on those decisions.

Both media and politicians are woefully ignorant of the Constitution and how the system of justice functions

The Kenyan judiciary is much more open than it used to be – a very good thing. But it could think about some measures to improve public, and media, understanding. In specific cases, especially of difficulty or sensitivity, they could publish not just judgments, but summaries and explanations. Many courts do put out summaries. A number of judiciaries also publish guides to the process not only for possible parties but also so the public may understand the mysteries of the legal process better. Again, Michael Kirby said, “There are dangers in playing the media’s game. Its mission will never be the same as that of the judges. … Courts would be diminished if they felt obliged to defend their decisions beyond their published reasons by employing media ‘spin doctors’ for that purpose. But it must be admitted that those reasons are often obscure and highly technical. Perhaps, by failing to provide user friendly and public friendly summaries and by insufficient attention to the necessities of communications in the age of informatics, judges have brought on themselves some of the confusion which they criticise so readily in others.”

What the courts should not do

Fortunately, we do not see many cases these days of prosecutions for contempt of court, at least not for the ridiculously named “scandalising the court” type of contempt. This is despite its having been, regrettably, retained in the recent Contempt of Court Act:

[C]riminal contempt … means the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other act which — (i) scandalises or tends to scandalise, or lowers or tends to lower the judicial authority or dignity of the court; (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice.

A few years ago, an appellate court in Australia was unwise enough to try to initiate a prosecution for the remarks summarised as No. 4 at the beginning of this piece (though they eventually decided not to press charges). Another Australian Judge, Dyson Heydon, commented,

“The goal of contempt of court rules is to increase respect for the law. Respect for the law has been said to be a core condition of judicial independence. Even if the Court’s intention in doing what it did was to vindicate respect for the law, can it be said that what it did in fact actually engendered less respect for the law?”

Not just for the courts

The task should not rest with the courts, or lawyers, alone. Like every other institution of government, the judiciary should be monitored by citizens, and the media. But this task is not one to be carried out in the ill-informed, and loud-mouthed, as we see the media and politicians (respectively, though politicians may be both) doing it.

Both media and politicians are woefully ignorant of the Constitution and how the system of justice functions. The Chief Justice was reported as having said, at the National Conference on Corruption, that “even the accused have the right to bail as provided for in the Constitution.” Generally, it is only a person accused who is need of bail, so “even the accused” seems inappropriate. It also reveals the persistent sense among Kenyans, including the media, that being detained pending trial is part of the just desserts of “criminals”.   

Though many politicians may be uneducable, the media, hopefully, are not. Media owners themselves, civil society, academics and others should collaborate in improving the training and understanding of the journalists. Accurate reporting of what is happening in the courts is vital.

The only way, perhaps, to get away from the mud-slinging that amounts to some saying “You refuse to convict people against whom we have perfectly good evidence”, and others “Oh no, we don’t – you don’t produce the evidence” is to have some objective evaluation of what goes on in court. It would be eminently useful if some civil society initiative could watch the proceedings in court of corruption trials, and give a more independent evaluation of the strength of the evidence before a court and the court’s response to it. (

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