GHAI: When judges are parties to court cases: Who judges judges?

In the Rawal case (see below) the Court of Appeal said, “Judges …are not autocrats but are obligated to be faithful to the law and to apply it impartially and with open mind. To the … laypersons in particular, it must seem incongruous that judges can be called upon to decide on matters of their welfare.

One might legitimately ask whether in a matter such as this whose effect go beyond the parties and has immediate and future ramifications on the well-being of judges generally can be decided by judges without their inclination towards self-preservation, rationally and impartially.”

A recent case

The judges whose appointment or promotion was held up by President Uhuru Kenyatta sued for compensation. The case was heard by a single judge who held (correctly) that they had been treated unconstitutionally.

He awarded each Sh15 million “general damages” (recognising some financial loss and mental suffering) plus Sh5 million “exemplary damages” – explaining that these “are punitive in scope intended to punish an outrageous conduct”.

I have the greatest respect for the judges in question. And Uhuru’s conduct was outrageous. But such an award inevitably caused some resentment.

Appropriate damages for violations of the constitution are hard to fix – and the current Attorney General made no suggestions. It is sometimes suggested that compensation in constitutional rights cases is to express condemnation of the behaviour, which does not require massive sums.

Exemplary (or punitive) damages are a sort of windfall for the recipient, and the real wrong-doer (here the former president) may go unpunished. The judge expressed disapproval of the behaviour of the relevant AG – but he is no longer in office and was not even named in court.

It would have seemed inappropriate for the judges to sue the retired president (though he no longer had immunity from being sued). But does that make it right to burden the taxpayers? Or to award damages around the level awarded to torture and illegal detention during the Moi period? Or to award to each judge over half the total for 28 victims of police brutality awarded recently by a Kisumu court?

The learned judge (and I mean that phrase) went overboard when he said that “They were considered pariahs in the eyes of reasonable members of society which diminished their dignity.” Reasonable members of society blamed the president. In at least two court cases the president’s conduct had been held unconstitutional. 

Can the problem be avoided?

Is it possible – or desirable – to avoid judges deciding about the legal rights, and duties, of judges?

Judges’ personal legal affairs (like a divorce or being involved in an accident), are not a problem. But, if the situation is one with which other judges might identify, the risk of the court hearing the cases being influenced (or appearing to be influenced) by the fact that the case involves a judge or judges is obvious.

No one is supposed to be a judge in their own case, goes a well-known saying (in Latin!). And justice must not only be done but must be seen to be done” is another (in English).

Article 160(5) keeps judges out of court to some extent. Judges and magistrates cannot be sued for “anything done or omitted to be done in good faith in the lawful performance of a judicial function”. If they were wrong and they knew it – that is different.  

Their immunity is narrower than in many countries; the words “in good faith in the lawful performance” were introduced at the Bomas National Constitutional Conference.

In another recent case involving the Judiciary and the Salaries and Remuneration Commission, the commission and the AG argued that the case ought to go to some sort of mediation, not a court. But judges, like anyone else, have the right to have their legal issues dealt with by an impartial court or agency (Article 50(1)).

In 1997 the Supreme Court of Canada held that in case of necessity a judge who might seem to be biased could hear a case because “a judge who is not impartial and independent is preferable to no judge at all”. (That was also a case about judges). The Kenya Judicial Code of Conduct of 2020 takes a similar view. So faced in such a situation a judge does not necessarily have to withdraw - recuse him or herself.

Rawal case

The issue came up in this 2016 case in an acute form. Under the old constitution judges retired at 74. The Judiciary website tells us, “Sir James Wicks who strongly supported the Government, is said to have rewritten a judgment in favour of the Executive. For his loyalty, the law on retirement age was amended three times to retain him until he was 74 years old.”

The 2010 Constitution says that judges must retire at 70. Judges whose careers were cut short by this provision sued (including Justices Rawal and Tunoi). The High Court and the Court of Appeal both decided that they must retire at 70. Those courts each had five judges for this case – presumably to avoid the problem of the case getting to the Supreme Court where those two judges sat.

But it did go to the Supreme Court (comprising all the judges except the two who had sued). In the end the court was so divided it could go no further than the preliminary stages, two judges favouring and two against one preliminary submission, and the fifth recusing him or herself.

Judiciary vs the SRC

I imagine many Kenyans thought that the recent case involving the Judiciary and the SRC was an example of judges benefiting themselves. The courts held that a car allowance that existed before the 2010 Constitution, and had continued afterwards, could not be reduced or removed, even by the SRC.

Article 160(4) says, “the remuneration and benefits payable to … a judge shall not be varied to the disadvantage of that judge.”

A similar approach – as law or a principle - is found in many countries. These rules are not privileges. They are intended to support the independence of the Judiciary in making decisions without financial pressure or threat of legal action.

I recall the judges in Hong Kong relying on this on the 1990s when threatened with a change from being provided with individual official cars to being expected to rely on a pool of official cars.

And in the 1930s, during the Great Depression, when the British government was reducing public servants’ salaries generally it was said the judges were “squealing worst of all”. This did not enhance public respect for judges at that difficult time.

Article 160(4) speaks of “a judge” not “the judges”. This was changed by the Committee of Experts at the last minute and is not explained in their final report. Could it be intended to suggest that reduction of individual judges’ remuneration or benefits is not permitted, but something that affected the Judiciary as a whole might be? In other words an individual judge must not be picked out for punishment.

In fact, the Court of Appeal was right in this case, for a different reason. Generally the SRC fixes the “remuneration and benefits of all state officers” (who include judges) (Article 230(4)). In constitution drafts produced until 2005 the Judicial Service Commission fixed judicial contractual terms “other than remuneration and benefits”. Generally “remuneration” means more than just salaries – indeed the very name of the SRC seems to suggest that remuneration does not include salary!

But the CoE drafts, including the one adopted in 2010, mentioned only “remuneration” for the Judiciary (Article 172(1)(b)(i)). We have to assume that a deliberate decision was made to leave fixing benefits to the JSC. The CoE did not explain why.

The author writes in her personal capacity