Abrupt transfer of magistrates questionable

Late last Thursday the press reported the abrupt and immediate transfer of 31 top magistrates, among them some who have been appointed Judges but have not yet been sworn.

The reasons for the en masse transfers are unknown and the officer making the formal announcement, Chief Registrar of the Judiciary, Anne Amadi, did not offer any explanations other than that the transfers were made advisedly, after consultations and approval of the Judicial Service Commission and the Chief Justice.

Were these transfers to increase judicial efficiency , run- of- the mill transfers, or to break the alleged cartels of corruption in the magistracy which are known to the litigants and accused or to answer the recent resentment and opposition to the discriminatory advertisement barring the in-house magistrates we will never know.

To put it bluntly, the mode of transfer of magistrates – even one magistrate - in the manner the JSC or the C.J is accustomed to implement, creates havoc in the stations where the magistrates operate from. It must be appreciated that most magistrates have wide jurisdiction to hear criminal and civil cases and in the line of duty deal with extremely weighty matters.

For example, the Chief Magistrates can hear civil cases where the subject matter is not more than Sh7 million and are also mandated in law and pass death sentences and even life imprisonment in criminal cases.

Despite not getting due credit for their work, the backbone of the judiciary remains the unheralded ranks of various classes of magistrates.

Instant transfers must and do erode the personal lives of the magistrates who have their marital obligations to their spouses, have responsibilities to young children and housing and transport disruption is costly and inconvenient.

All this dilutes the morale of the judicial officers and reflects inevitably in the standard and quality of services the magistrates provide. The most painful after effect of such transfers filters to others in the judicial system, mainly the accused, or plaintiffs or defendants, and their lawyers. The prosecutors, the witnesses, the probation officers too are disoriented.

To appreciate the predicament and the unwarranted confusion which will be created by these transfers, at least the fate of about one thousand “part heard” cases will be placed in jeopardy and delays of months, and even years will result.

Part heard cases are those cases where magistrates have commenced hearing of the cases by allowing witnesses to give evidence. Mid-stream changes of magistrates are allowed by law since 1982 in criminal matters by the implementation of Section 200 (1) of the Criminal Procedure Code which reads:

“... where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—

(a) deliver a judgment that has been written and signed but not delivered by his predecessor; or

(b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.”

Most accused opt not to start the cases ‘de novo’ (from the beginning) mainly to mitigate costs and time but sometimes dealing with one case lowers the ultimate standards of justice because the magistrate taking over the case of a colleague will not have seen the demeanor of witness. So such cases are decided by reading the cold scripts – sometimes unreadable – of the former magistrate.

The transfer of magistrate shuffling of files, movement of court clerks and even availability of prosecutors results in many cases being decided unfairly and unjustly. The judicial expedience is at the cost of justice in such cases.

The cases are built on evidence which witnesses physically give in court. To recall witnesses is cumbersome, costly and witness reluctance or apathy erodes the standards of justice.

All the pros and cons of transfers are well known to the judicial system and simple and realistic methods of transfer can answer the plight of the corroding system.

The remedy lies in giving magistrates ample notice of transfers – say three months. Within these three months, magistrates targeted for transfer must cease to take on new work and be ordered either by internal directions or by law to complete all their part heard cases.

The Defence and the prosecutors must also be ordered to finalize these cases within the time frame.

The morale in the magistrate ranks of judiciary is sadly ebbing. The workloads are increasing at alarming rates – cases in Makadara and Kibera, for example, are being given dates in July and August – and not allowing qualified magistrates to apply for available jobs is not only discriminatory but at best sad.

Time to rethink on the modalities of transfer in the judiciary is now and perhaps even the law must be changed that if a magistrate has commenced a hearing he/she must finish the case to finality.

The injustice of Section 200 of Criminal Procedure Code provokes discontent and may one day result in it being questioned as a constitutional issue as it can and often does result in an unfair trial.