As the tribunals prepare to sit in judgment over the conduct of Court of Appeal and High Court judges, the question is what criteria they will use to determine whether the judges should be removed or not. Unfortunately in Kenya, we have not had a written code of judicial conduct. However, there are internationally recognized canons that guide judges in the carrying out of their functions. These guidelines, lawyer PAUL MWANGI writes, very slightly from one judiciary to another, but they fall under about five heads. Any breach is interpreted as prejudicial to the administration of justice and a ground for the dismissal of a judge.
- A judge must uphold the integrity and independence of the judiciary. Justice is one of the threads that bind the country together for it ensures law and order. The social contract between the citizens of a country is that they shall surrender their human right to defend themselves and give the power to the judiciary to determine and enforce each person’s rights. An independent judiciary is, therefore, indispensable to the survival of the society as a civilized community. A judge has a duty to maintain and enforce the integrity of the judiciary. He must not allow any person to jeopardise the ability of the judiciary to hold the society together. On his part, he must guard against being such a threat by observing the highest standards of integrity in his conduct. Respect of the judiciary by the society must be earned not just by the institution but also by all its members individually.
- A judge must avoid impropriety or any appearance of it on his part. Judges must be above all wrong doing. They must also avoid any situation in which they may appear to have done wrong. It is, therefore, the principal duty of every judge to comply with all the laws of the country. They must obey all traffic rules, criminal, civil and taxation laws. The public will not have confidence in a judge’s ability to enforce the law if he himself does not obey it.
Secondly, a judge must live his personal life in a way that instills confidence in the public. He must not appear to be capable of being influenced and must avoid any associations that could give that impression. He must not allow any family, social, business or political relationships to interfere with the people’s confidence in him as a person and as a judge.
Lastly, a judge must never use his position to advance his personal interests. He cannot use his position to promote his business, acquire property or seduce women. Neither can he allow any person associated with him to use that alliance to do likewise.
- A judge must perform his duties impartially and diligently. The judge’s ultimate loyalty is to the judiciary and the administration of justice. His duties and position as judge take precedence over all his other associations and activities. In case of any conflict he must either renounce the activity or association or resign his position.
He must be faithful to the law and always exhibit the highest standards of professional competence. He must therefore perform his duties without bias or prejudice, accord every person who comes to litigate before him a full hearing and must avoid deciding people’s rights in their absence or based on issues not relevant or not brought up during the proceedings.
A judge must be prompt and efficient and must hear disputants and decide their cases with the least delay possible. As the presiding officer of a court of law, he must be dignified, patient and courteous to all persons involved in cases before him and must also require all persons in court to observe the same behavior. A judge must always disqualify himself from any case where his impartiality may be reasonably questioned.
- A judge must conduct all his extra-judicial activities so as to minimize the risk of conflict with his judicial obligations. He must not be involved in any activity that can cast doubt on his capacity to be independent or impartial, lower the dignity of his office or interfere with his performance of his judicial duties.
He may attend harambees but not be one of the organisers and may not address the gathering as this would be tantamount to using his position to solicit funds, or to use the prestige of his office to further other objectives not connected to the law or administration of justice. In a business, a judge may not act as an officer, director, manager, partner, advisor or employee of any enterprise. He must not engage in any financial or business dealing that may be perceived as an exploitation of his office as a judge. He must not do business with people who are likely to come before the court where he serves either as lawyers or litigants. He must also ensure that these rules are observed by members of his family and any person residing with him.
- A judge must refrain from political activity inappropriate to his judicial office. He may not lead or hold any office in a political organization, identify himself as a member or supporter of any political group nor endorse any person to public office.
He may not attend any political gathering or make any speech that supports a political cause and must ensure that his family or persons residing with or working for him observe the same conduct. Within these canons, a judge’s conduct in everyday business and private life is interpreted. For instance, a judge may not accept to be paid for his non-judicial services an amount higher than that a person with his competence who is not a judge would receive. He cannot agree to take a loan from a person other than a financial institution and then only on the same terms applicable to other people.
These canons are used to ensure that no judge is in a situation where he can be compromised. Any weakness in the judge are weaknesses in the administration of justice.