We shouldn't judge Judiciary wrongly in trying to reform it

By Charles Kanjama

Judging well is an important quality for any society, its judges, and its citizens.

During the Constitution review process, Kenyans judged that there was an urgent need to institute top-down judicial reforms. Unlike the other two arms of Government whose top officers would serve out their terms, the prescription for the legal-justice system was the replacement of the Chief Justice within six months and the Attorney General within one year.

A majority wanted the Judiciary reformed. Like the other two arms of Government, they were convinced that the legal-justice system was broken and needed fixing. But unlike the Executive and Legislature, they wanted it fixed immediately. Fixed now. Fixed first and fast. Fixed from top-down.

Kenyans therefore judged the judging of our Judiciary. Did we judge well, and will the new Constitution’s proposals make our judges judge better? Judging well is not easy. It requires firm adherence to principles, dependable reliance on law and conformity to moral conscience.

Judging well requires due exercise of the four cardinal virtues. First it requires prudence, because a good judge employs right reason to discern truth, expose falsehood and reach the best solution to human dispute. Second it requires justice, because judging is ultimately about giving others their due.

Third, a good judge needs fortitude, or courage, because a judge must act without undue influence, fear, or favour. Finally, a good judge needs temperance or moderation, because the judge recognises the limitations of the human justice system and yet is ready to act within it and strive for perfection.

A story is told of a lawyer who started out to do good, but only ended up well-to-do. Well, the same could happen to the judge.

Truly judging well means a balanced and apt utilisation of ratio decidendi (the reason for the decision) and of obiter dicta (incidental opinions). It requires a balanced measure of wit and logic, intuition and reason, learning and experience. Good judging needs adequate application of industry and brilliance, commitment to duty and a drive to exceed the limitations of human justice.

Justice Madan expressed it well in the 1979 Kenyan case of Butt v Rent Restriction Tribunal. In his obiter dicta in a tenancy application, Madan reflected on the qualities of a good judge: "A judge is a judge whether he is newly appointed or an old fogy. The former has the benefit of his latest learning, the latter the advantage of experience. Both are men of honour and scholarly gentlemen.

"Both are conscientious and judicious individuals imbued with reason. Both are dependable and do not make wild surmises. Both act upon consecrated principles. Both get a fair share of juristic skills. Both are jealously scrupulous and impartial. Both are 24-carat gold. Both act free from doubt, bias and prejudice... Both speak no ill of any litigant. Both are torchbearers for stability of society. Both are strugglers for liberty."

For Kenyan judges to approach Justice Madan’s ideal of the good judge, and to be fair – some already do, they need the support of the legal profession and the entire society. We need a well-resourced Judiciary; we need more judges, and we also need a proportion of young judges. We need a law society that can engage the Judiciary, without descending to antagonism and stalemate. We need lawyers who are capable of judging well, and who will judge well when they are called upon to vet or join the Judiciary.

 There is one striking shortcoming in the new Constitution. It is the failure to eliminate the powerful Chief Justice, who heads the Judicial Service Commission, unilaterally transfers judges and magistrates and impacts on blind and random justice by allocating cases to particular judges.

Unless this is dealt with, the structural changes and anticipated personnel modifications in the Judiciary may remain largely ineffective. In judging how to help our judges judge better, we may ourselves have judged badly the causes of judicial imperfection.

—The writer is an advocate of the High Court of Kenya.