Who guards the guard?

In one of his writings, “What Next in the Law” Lord Denning observes: “There remains the most touching question of all.  May not the judges themselves sometimes abuse or misuse their power.  It is their duty to administer and apply the law of the land.  If they should divert or depart from it and do so knowingly it is a misuse of power.  So we come up against Juvenal’s question, sed quis custodiet ipsos custodes (But who is to guard the guards themselves?)”

The question posed by Lord Denning is the dilemma we are faced with in our judicial system today. It is a question that may not attract a straight forward answer, especially where the problem is the chief guard himself. Some scholars have held the opinion that it is the Constitution and the law that is supposed to guard the guards. The guards in this case being the judges, Lord Denning seems to suggest, however, that it is the judges to guard themselves. This doesn’t seem to be the case where the guards have got the tools to violate the Constitution and the law, which is what we are grappling with.

Article 162(1) of the Constitution provides that, “the superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2).” The Courts have been given the power to interpret the law and to uphold the supremacy of the Constitution by declaring void any law that is inconsistent with the Constitution and invalid any act or omission in contravention of the Constitution. The courts are also given the authority by the Constitution to uphold and enforce the Bill of Rights and, to this end, declare invalid any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24.

The courts are therefore the watchdogs, the keepers of the Constitution and the rule of law. The Supreme Court being the apex court is supposed to be the ultimate watchdog. In Speaker of the Senate & Another v Attorney General & 3 others [2013] eKLR, the Supreme Court seemed to appreciate this fact. The Court observed that “where the Constitution decrees a specific procedure to be followed in the enactment of legislation, both Houses of Parliament are bound to follow that procedure. If Parliament violates the procedural requirements of the supreme law of the land, it is for the courts of law, not least the Supreme Court, to assert the authority and supremacy of the Constitution.”
SC Petition No. 23 of 2014

On 19th October, 2015 the Supreme Court delivered a decision in “Petition No. 23 of 2014, Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others”, which was received with heavy criticism from both within the legal circles as well as the general public. This was an Appeal from the “Judgment and Orders of the Court of Appeal in Nairobi Civil Appeal No. 228 of 2013” delivered on February 28, 2014. This was an election Petition and therefore the issues around it were mainly the interpretation and application of certain provisions of the Constitution regarding elections, the Elections Act, and the Election Regulations made thereunder.

In the middle of its judgement, the majority of the court steered off from the issues in the Petition and resorted to address itself to what it termed as “Contretemps afflicting judgment-delivery: Apprehensions of counsel”. This heading in the judgment referred to two letters written by the counsel for the Appellant dated October 25, 2015 and October 8, 2015, and addressed to the Chief Justice and the Registrar of the Supreme Court respectively. In those letters, counsel had raised the issue of delay in delivering of judgement in the matter. Counsel raised concerns that “since the appeal was heard on July 7, 2015, the same has been pending judgment” which the court had indicated was to be delivered on notice.

The Advocate raised concerns over two issues: first, the possibility and the ramification of the judgement being delivered after the lapse of 60 days as contained in Order 21 of the Civil Procedure Rules, and secondly the fact that the Judicial Service Commission (JSC) issued a notice directing Judges over 70 years of age not to preside over matters. The letter stated; “The delivery of the pending judgment may be affected by ongoing legal challenges. Your urgent consideration of the matter will be highly appreciated.”

From the Court’s perspective, at least from the majority opinion (with CJ Willy Mutunga dissenting), the letter in question touched on certain fundamental constitutional issues. The judges identified those issues to include the citizen’s guaranteed right “to have any dispute that can be resolved by the application of law, decided in a fair and public hearing before a court” as provided by Article 50(1) of the Constitution; the trust held by the Judiciary as custodian of the people’s sovereign power as provided under 1(3) of the Constitution; and the right and obligation of a Judge who is over 70 years of age and still in office, to preside over matters in Court – in view of the directive of the Judicial Service Commission.”

In the opinion of the judges, the letter qualified for cognisance before the Court on the basis of the doctrine of judicial notice. The Court then went ahead to a lengthy discussion of the concept of judicial notice. They felt that the said letter was an encroachment on the judicial independence of the judges whose retirement issue was in question and therefore it was imperative that they took judicial notice of that letter.

Constitutional principles
By addressing itself to the said letter and going to the extent of declaring the notice issued by the JSC to the judges in question a nullity, the Court violated clear constitutional principles by allocating itself original jurisdiction to act as a court of the first instance which jurisdiction it only has in presidential petitions. The Court also undermined the authority of lower courts to deal with matters before them without any interference. In addition, the court subverted the constitutional right of every party to be accorded fair hearing under Article 50 of the Constitution by rendering itself on issues touching on parties not before it without giving them a chance to be heard.

Arbiters in their own cause
The doctrine of nemo judex in causa sua is a principle of natural justice that prohibits anyone from being a judge in their own cause. Two of the Judges, Justice Tunoi and Justice Rawal, DCJ are parties in two separate cases currently pending in the High Court challenging the decision of the JSC to issue them with retirement notices. The issues in the said letter directly touch on the issues before the High Court. The judges in essence resorted to sit as arbiters in their own case. They sought to hide under the doctrine of security of tenure and judicial notice and use the same to usurp the powers of the lower courts to deal with matters before them, claiming that even the JSC lacks the supervisory power over the judges in conduct of their judicial mandate. This is the highest level of judicial impunity. JSC, being the employer of judges, is best placed to know when a judge is due for retirement and therefore can issue a notice to that effect.

As if they were not aware of this fact, and with defiance, so to speak, the Court went ahead to address the notice issued by JSC and declared it a nullity without any proceedings touching on the same. The Court stated, “This Court takes the position that the security of tenure for all Judges under the Constitution of Kenya, 2010 is sacrosanct, and is not amenable to variation by any person or agency, such as the Judicial Service Commission, which has no supervisory power over Judges in the conduct of their judicial mandate. We find and hold that the Judicial Service Commission lacks competence to direct or determine how, or when, a Judge in any of the Superior Courts may perform his or her judicial duty, or when he or she may or may not sit in Court. Any direction contrary to these principles, consequently, would be contrary to the terms of the Constitution which unequivocally safeguards the independence of Judges.”

The judges went on to state; “It follows that the said directive concerning Judges of the Superior Courts, issued by the Judicial Service Commission, is a nullity in law… Responding to the issues raised by learned counsel, as regards obligations vested in this Supreme Court [The Supreme Court Act, 2011 (Act No. 7 of 2011), Section 3(a) and (b)], we hereby signal that the Court’s Bench, as constituted by the learned Justices who rendered service in this case, indeed bears the constitutional mandate to hear and determine the cause in hand – notwithstanding the apprehensions of learned counsel.”

It is important to point out that the Constitution only safeguards the independence of judges and not strangers purporting to act as judges. That very Constitution cited by judges is clear that the retirement age of a judge is 70 years, so that when a judge reaches the constitutional retirement age they cease to be a judge and they consequently cease to enjoy such constitutional safeguards.

No insurance
Prior to the 17th Century, the English courts of equity, presided over by the Lord Chancellor, exercised a discretionary jurisdiction to modify the excesses of the common law, and so its judgments were often ridiculed as being the “length of the Chancellor’s foot.” This scenario however changed with the development of the principles of equity that brought certainty and predictability in granting of equitable remedies.

The concept of judicial independence, however, is not meant to make judges look like the Lord Chancellor, neither is it supposed to allow judges to act with impunity. As Elena Ruth Sassower observes, “Judicial independence is predicated on ‘good faith’ decision-making.

It was never intended to include ‘bad-faith’ decision-making, where a judge knowingly and deliberately disregards the facts and law of a case. This is properly the subject of disciplinary review, irrespective of whether it is correctable on appeal. And egregious error is also misconduct, since its nature and/or magnitude presuppose that a judge acted wilfully, or that he is incompetent.”(Elena Ruth Sassower, “Without Merit:  The Empty Promise of Judicial Discipline”).

On the same breath, in the case of “Osborn v Bank of United States, 22 US 738, 866 (1824)”, former US Chief Justice, John Marshall stated as follows: “Courts are the mere instruments of the law and can will nothing. When they are said to exercise discretion, it is a mere legal discretion, discretion to be exercised in discerning the course prescribed by the law; and, when that is discerned, it is the duty of the Court to follow it.” In other words, where a judge simply acts outside the Constitution and the law and therefore in bad faith, the judge waives such protection and is liable to the necessary disciplinary action.

Doctrine of stare decisis
Article 163 (7) provides that “All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.” The High Court hearing the issue of retirement of the judges is therefore bound by the above decision of the Supreme Court and since the Supreme Court has rendered itself on the issue, the lower courts have no option but to follow that decision, a rather very unfortunate scenario in a case such as this. The doctrine of stare decisis requires lower courts to follow the decisions of the higher courts where the circumstances are similar. Thus, the Supreme Court being the highest court in Kenya, its decisions, including this particular one, are binding on all the other courts.

It is important to point out that the principle of stare decisis is not absolute; there are exceptions to it. For instance, a court may decline to follow a decision which would otherwise be binding on the following circumstances: one where there are conflicting previous decisions of the court; where the previous decision is inconsistent with a decision of another court binding on the court; where the previous decision was given per incuriam.

On this, I would have said that the jury is still out there, but the High Court has confirmed its duty to follow the decision of the Supreme Court even where the decision is clearly wrong or was given per incurium or where the court was clearly biased. In “Nairobi Petition No. 288 of 2015 Okiya Omtatah Okoiti & another v Attorney General & 2 others [2015] eKLR”, where the High Court was asked to make a declaration that the Supreme Court  issued orders in Advisory Opinion No. 2 of 2012 whose implementation required amendment to the Constitution. Korir J stated that “The petitioners allege that they have approached this Court on the strength of its original jurisdiction. The truth of the matter is that this Court has no jurisdiction whether original, appellate or supervisory over the matters that have had the insight of the Supreme Court or any other superior court… It can be argued that since Article 165(3) (d) (ii) of the Constitution empowers this Court to determine questions whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution, then the decisions of the Supreme Court are within the reach of this Court. That would, however, be a constitutional heresy as the same Constitution at Article 165(5) (a) forbids this Court from having jurisdiction in matters reserved for the exclusive jurisdiction of the Supreme Court… Once the Supreme Court formed the opinion that the gender equity question was a matter befitting determination through an advisory opinion, the power of this Court to address that question was taken away.”

What-will-you-do-about-it?
The Chief Justice, in his dissenting opinion, pointed out that Courts derive their authority from the Constitution and are therefore commanded to adhere to the national values and principles enshrined in Article 10 of the Constitution. He stated that; “…The Bench majority, with greatest respect, in commenting, making a finding and a holding based on the said letter violated all these constitutional national values and principles. This action on the part of my learned sister and brothers smacks of ‘judicial uta-do?’ It is a worrying form of judicial impunity.”

The CJ was of the opinion that the said letter was addressed to the Chief Justice and President of the Supreme Court, and not the Supreme Court and therefore should neither have been treated as part of proceedings in the appeal nor been the basis for comment, holding, and finding in the judgment. It was his view that since the court was not properly moved within the confines of it jurisdiction as provided under the Constitution, it lacked the jurisdiction to entertain the contents of the letter. He observed that; “The comments, finding, and holding on the letter in question formed extraneous questions defined as those that are beyond or beside the point to be decided… Part E of the majority judgment deals with extraneous issues that should not be included in the judgment. These issues are neither found in the submissions of the parties, nor did they form the issues framed by this Court. Moreover, no party before the Court sought any reliefs in this regard.”

By addressing itself to the matters that are properly before the High Court or any other lower court, the Supreme Court undermines several constitutional principles, including the principle of hierarchy of courts as established in the Constitution as well as the professional competence of these other courts to handle matters before them and which they have been given the jurisdiction by the Constitution and the law to handle.

Judicial dishonesty
In this case, the Supreme Court clearly engaged in judicial dishonesty, probably the highest level of dishonesty. Michael L. Katherein observes in his work “Why you have no Civil Rights and what you can do about it” that; “Among other things, a dishonest judge can ignore evidence, twist rules and procedure, obstruct the record, manufacture facts or ignore others, allow infirm claims or dismiss valid ones, deny admission of evidence prejudicial to the favoured party, suborn perjury, mischaracterise pleadings, engage in ex parte communication and misapply the law.”

He notes further that; “When you think of a “corrupt” judge, you may think of one who trades rulings for cash. As far as we know, that obvious sort of corruption is rare. You must appreciate however, that corruption may take subtle but equally destructive forms.” This is exactly what the judges did; they misapplied the law knowingly so in aid of their brothers and sisters on the bench.

In “Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR”, the parties themselves agreed that the Application was not connected to section 14 of the Supreme Court Act since none of the judges who presided over the appeal were found unsuitable for office under section 21 of the Judges and Magistrates Vetting Act, and yet the special jurisdiction under section 14 of the Supreme Court Act can only be invoked where a judge has been removed, retired or has resigned as a result of a complaint. They argued, correctly in my view, that the circumstances contemplated by Section 14 of the Supreme Court Act did not exist in this particular case.

Whereas the Court agreed that, on the face of it, the application was not one for review as envisaged under Section 14 of the Supreme Court Act, it went ahead to consider Section 14, and declared it unconstitutional despite there being a different matter already filed before the court (Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 Others [2013] eKLR) specifically under that very provision.

In the matter of the “Principle of Gender Representation in the National Assembly and the Senate Advisory Opinion No. 2 of 2012 [2012] eKLR”, the Attorney-General asked the Supreme Court to determine whether the gender quotas were to be attained in the March 4, 2013 General Election, or progressively at a later date. The Court advised as follows:

“…we are of the majority opinion that legislative measures for giving effect to the one-third-to-two-thirds gender principle, under Article 81(b) of the Constitution and in relation to the National Assembly and Senate, should be taken by August 27, 2015.” The Court held this view despite the fact that it is not envisaged anywhere in the Constitution that the one-third-to-two-thirds gender principle will be progressively realised. This decision gave Parliament the leeway to postpone the realisation of the one-third-to-two-thirds gender principle even beyond the August 27, 2015.

Out of touch with its mandate
The above, plus other cases, where the Court has either disregarded the Constitution and the law or used other extraneous evidence to arrive at a certain finding only reveal a court completely out of touch with its key mandate – which is to safeguard the Constitution and the rule of law and the rights of the people. The case of Nicholas Salat is a clear indication that the Court has turned into the unguarded guard who has turned against his master and, with the tools given to him, continuously attacks him. Such actions, coming from the highest court of the land, only serve to erode the little faith and confidence that the people still have in our judicial process.