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Let us protect judges from frivolous complaints

By - | June 1st 2014

Mr Chief Justice, please allow me to write to you in your capacity as the Chairman of the Judicial Service Commission and head of the Judiciary.

When all else is lost, we all troop to the courts in search of justice.

The cases that come through the courts range from presidential election disputes to commercial disputes.

People trust the Judiciary to assist them in matters as close as family disputes.

Terror suspects are brought to court; in matters where Kenyans have suffered great devastation.   The public looks up to the courts to deter the repetition of similar incidents.

Indeed the grave concern for the security of this nation apparently prompted the security agencies to call on you in an effort to provide a way forward on the war on terror. You are reported to have welcomed information sharing and dialogue within the limits of the Constitution and human rights law.

In recognition of that tremendous responsibility, on the Judiciary and its officers,  the Constitution and the other Acts  provide certain safeguards for judges. They have security of tenure; they cannot be removed from office except by the recommendation of a Tribunal.

For the role that the judicial officers play, the court users stand and bow when judicial officers come into court. The officers are addressed respectfully, even when the users hotly disagree with their decisions; it is not about the judicial  officers but the office they represent. That office is held in high regard. The public was, therefore, confused when it read that the same  judicial officers have had to go to court on the issue of their retirement age. I am aware I cannot comment on the merits of the cases before the courts and I will not do so.

At a public debate level, the issue remains one of speculation. The public must wonder whether the JSC does not have mechanisms for consulting with the affected judges.  The public must also be unable to understand why, on issues where there is no consensus, questions cannot be formulated for an opinion by the Supreme Court.

Should not the provisions of the Constitution requiring Alternative Dispute Resolution be the first place to go in the event of a dispute? If the JSC and the judges cannot embrace  ADR how are they going to recommend it to their clients, the litigants? 

As the JSC reflects on mechanisms to put in place, may I suggest  that it also does so in respect of how to deal with complaints against judges.

You see Mr Chairman, we hear a lot from the grapevine and as it is important and may never get to you, I will let you in the hope that you can do something about it.

I hear that lately and especially since the vetting process began, there are  many complaints  against judicial officers.  While that is a good thing because people are holding the courts accountable, there is  concern, however, that the  complaints are forwarded to  the concerned judge with a letter requesting  him to respond and that  the letter  is copied to the complainant.

I imagine that a judicial officer who receives such a complaint is  immediately placed on his defence and has to answer. After all that complaint could send him home. To do that the judicial officer is distracted from his core business of dispensing justice. 

Perhaps the JSC can borrow a leaf from the Law Society of Kenya where a complaint against an advocate is first taken through a committee that establishes whether or not it has merit. If it does not, it is dismissed at that point. If it does have merit, it is then taken to the Disciplinary Tribunal for hearing.

The need to sieve complaints is increased by the fact that a judicial officer hardly pleases both parties. The losing party will always wonder whether the decision was motivated by other considerations and many people losing cases will tend to complain. In my view, only the cases that meet a certain threshold should be forwarded to the judicial officer to respond to. 

I am aware that the Judicial Service Act provides for a plethora of regulations to be made.

Could it be that the formulation of regulations is what the institution needs in order to develop mechanisms and systems to safeguard the institution and the judicial officers?

The writer is a family lawyer

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