Saturday, January 14, 2012

Dealing With Judges With Criminal Cases



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Despite the well intentioned steps taken by the Chief Justice and the Judicial Service Commission in the Village Market saga I believe there is a great risk in compromising the due process .The effect will be to lower the dignity of the institution of the judiciary .Whatever the crime committed by a judge the JSC should deal with the matter with sobriety ,calmness and style that upholds the procedures established by the New Constitution ,the law ; the internationally accepted minimum standards for resolution of judicial problems.
Under article 168(2) the Judicial Service Commission is empowered to initiate removal of a judge on its own motion and Article 168(4) through a petition by any person. This power is restricted to removal of a judge from office. When a petition is presented to the JSC its is expected to peruse the facts and decide whether to forward the same to the President for purposes of appointment of a Tribunal. It is the Tribunal that inquire into the matter and report to the President together with its recommendation. The judicial service commission has no general powers to inquire or investigate any misconduct/misbehavior or crime committed by a judge. It has powers to investigate registrars, magistrates and other judicial officers under article 172.
The Judicial Service Act has made provisions for the procedures of investigating conduct of Chief justice ,deputy chief justice and other judges .Again no general powers are given by the Act to JSC to investigate a judge. The procedures relate to a tribunal and its composition. The JSC is empowered to appoint committees for the purposes of day to day administration. No committee or sub-committee is provided for investigation or inquiries of a judge. No delegation of such a important function was envisaged by the constitution
When a judge commits a crime .what are the remedies?
When a judge commits or is suspected of committing a crime the first issue is a trial within the system established for that purpose. According to the Constitution the office of the Director of Public Prosecution must direct the police investigation and peruse the file without the interference from any other authority.(article 157(10).The reasons for advising a prosecution must be guided by evidence and public interest.(Article157(11)The prosecution must comply and meet the normal standards for all public prosecutions irrespective of personality involved.(article157(6).
The Judicial service Commission is an employer of a constitutional office holder. It is obliged to initiate and carry out the discipline of the judicial officers for misbehavior/misconduct in accordance with the constitution and the Act. JSC may in appropriate cases recommend the appointment of a tribunal to investigate the conduct of the judges. The verdict of the tribunal is either the removal from office or retention.
Although prosecution is not a prerequisite to a finding of misconduct a conviction may be a conclusive evidence of the existence of misbehavior of a serious nature. Again the conviction may be for offences that seriously undermine the office of a judge or the institution of the judiciary e.g. offences associated with corruption fall under this category. A criminal offence has a high standard of proof than the administrative/judicial tribunal and inquiries. In my view if this option is taken the police must complete their investigation and prosecution before JSC invokes its powers and possible Tribunal enquiries.
It would be unwise and ill advised to run parallel investigations or enquiries one by police and another by JSC, the employer. For impartial investigations the JSC should not at this stage call for the police file or the evidence so collected. It should go through the established channel to the DPP.T he latter must form his opinion without any consideration of position of JSC or even public pressure. On the other hand when the police has taken over investigation it is a serious miscarriage of justice for JSC any judicial organ to visit the scene of crime or start evaluating evidence. This makes JSC members visiting scenes of crime potential witnesses.
Eventually if the judge is charged with an offence he will be obliged to appear before a judicial officer. God forbid if any other judicial officer has already come into possession of evidence before the trial. This may amount to a serious miscarriage of justice and a mistrial.
What then is the role of CJ?
If the judge is charged and is to appear in court the DPP may presumably request CJ to suspend him pending trial. It is a moot question whether Chief Justice or JSC has power to suspend a judge unless engaged in the process of his removal .Under article 168 (5) It is only the President who can suspend the judge. The power to suspend does not entitle CJ or JSC to make any adverse finding on the judge. It is within the judges rights to challenge such a suspension. When a judge is being investigated by the tribunal it is now mandatory that he must be suspended unlike under the old constitution.
The acquittal of the judge may entitle him to demand reinstatement especially if a full hearing took place and was fully exonerated or even where the charges were wholly misconceived, ab initial. An acquittal on a technicality or a compromise that still leaves glaring inconsistencies and obvious triable issues may not assist the judge .The JSC and the Tribunal would be at liberty to look at all evidence from the view of the judicial principles and fairness. A judge may still face disciplinary action in such circumstances.
Judges are humans and live with us in this imperfect world of sin. They will inevitably either intentionally or inadvertently commit offences. They have their passions and emotions .In their first appointment they may experiment with new found power and prestige. They shall be harshly judged because of the trust bestowed on them by the people. However, they must like everyone else be accorded due process .That is the price of democracy.
Mbuthi Gathenji is a advocate of the High Court of Kenya, Director of Dispute Management Centre (DMC)Former Assisting Counsel in the Tribunal Investigating Conduct of Judges of Appeal Hon JUSTICE PHILIP NYAMU WAKI and Hon MOIJO MATAIYA ole KEIUWA and Tribunal investigating Puisne Judge ,Hon Justice TOM MBALUTO. A former Member Reference Group (appointed in the Constitutional of Kenya Review)

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