When a mental illness gets in the way of justice

Supreme Court Building. [File, Standard] Sometime in 2018, Environment and Lands Court Judge Mary Muthoni Gitumbi stopped working. She could not deliver her judgments in time, her cases were adjourned, and parties started complaining over her slow pace of work and constant absenteeism. Her colleagues kept wondering why she was burdening them with case backlogs. It was only after the Judicial Service Commission (JSC) ordered a medical examination that it was discovered that Justice Gitumbi was suffering from a mental health disorder. A medical report concluded that, based on the fact that Justice Gitumbi was being treated for schizophrenia with evidence of several relapses, lack of insight during relapses leading to absence from duty, and evidence of below-average performance, she was not fit to serve as a judge. Her condition has set a precedent. She is the first judge to be declared unfit to continue serving in the Judiciary due to mental incapacity. The Supreme Court upheld a tribunal's findings that she be dismissed from service due to her condition. Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola, and William Ouko stated that although they sympathised with Justice Gitumbi's condition, they could do nothing to save her since the work of a judge requires one who is mentally sound and alert at all times. "The record shows her performance as a judge was affected by absenteeism caused by her mental illness. Her absence was not only when she was hospitalised but also when she fell ill and was not admitted to hospital which became acute in the period under review," ruled the judges. The decision has elicited debate over mental health in the judiciary and the legal profession which requires long hours of reading, researching, writing, and arguing court cases. As the apex court judges put it, the courts hear and determine complex cases about several disputes with numerous parties and lengthy hearings which require a sane mind. Some legal experts argued that the finding by the Supreme Court could present challenges to litigants whose disputes were determined by the judge on the basis that she was mentally unsound at the time of delivering the decisions. Lawyer Angela Mwadumbo stated that judges and advocates are human too and go through mental challenges that need therapy to help them cope with the high demands of the legal profession. Ms Mwadumbo, who is a board member of the Law Society of Kenya's Advocate Benevolent Association, said they have partnered with psychologists' associations to help their members attend therapy and receive psycho-social support for their mental health. "It is important not only for judges but also for advocates to debrief. The workload catches up with us at times and if we don't create time to unwind, mental health may catch up with us," said Mwadumbo. According to Geoffrey Wango, a psychologist, judges need psychological help to be of sound mind given their nature of work, which involves determining the fate of disputes involving hundreds of people. Dr Wango stated that the problem with judges and lawyers is that they believe their problems can only be addressed through legal processes instead of seeking psychological help to address some of their challenges. "Judges and lawyers are like any other people who suffer life challenges that affect their work. Their only undoing is that they like going for the legal part to solve their problems forgetting the psychological help which results in the mental challenges they face," said Dr Wango. Dr Wango added that there would be no harm if the Judiciary called for mental assistance for the judicial officers and created mental health programme for judges to avoid another situation of a judge being declared unfit to hold office due to mental incapacity. He added that mental health illness can affect anyone and that the best way is for judges and other judicial officers to seek psychological help when they notice symptoms or clinical treatment. Lawyer John Swaka claimed that mental health cuts across both the bench and the bar, with lawyers and judicial officers suffering equally. According to Mr Swaka, judges are more exposed to mental health due to the pressure of work and litigants who expect them to sit long hours hearing their cases, deliver judgments and rulings, and at the same time live a normal lifestyle. "What we need is balance and that is why judges have court vacations three times a year other than their leave days. Even as people work hard, those involved in the legal practice need to have their minds relaxed to avoid what happened to the judge," said Swaka. The Supreme Court judges had also noted the need to save their colleagues from mental melt-downs and proposed to Parliament to amend the Mental Health Act (Cap 248) guided by best practices and provide guidelines for removal from office of State officers affected. Additionally, they proposed that Parliament should consider aligning the Employment Act with mental health considerations and accommodations, such as the provision of clauses that place the onus on employers to ensure that they create a safe working environment. "Parliament should provide a clause that mental health issues are not caused or exacerbated by work-related stress and that employers have a legal duty to reasonably accommodate employees with mental illness," ruled the judges. Justice Gitumbi was suspended from the Judiciary in 2021 following recommendations by the Judicial Service Commission after an inquiry into her mental health status. Her troubles started soon after she was appointed a judge of the Environment and Lands Court in 2012 when lawyers raised concerns over her suitability due to her history with mental illness. The JSC, at the time, resolved to have her undergo a medical examination but after assessment, a report by the medical board concluded that she was sane, coherent in speech, had a good memory of current affairs, and was declared by her psychiatrist to be fit to take up the position of a judge. However, in 2018, the JSC received more complaints against the judge after lawyers and her colleagues complained that she was constantly absent from her court stations, delayed proceedings, and could not concentrate when handling disputes. Based on the complaints, the commission directed that a second medical test be carried which concluded that the judge suffered from a mental health illness with several lapses which made it impossible to carry out her duties. The commission established that there was ground for the removal of Justice Gitumbi based on her inability to perform the functions of the office arising from mental incapacity and recommended to the president to suspend and form a tribunal to investigate her conduct. Former President Uhuru Kenyatta suspended the judge on July 20, 2021, and appointed a tribunal comprising of three judges and two psychiatrists to investigate the allegations of mental incapacitation. The tribunal, in a report dated April 13, 2022, stated that the allegations that the judge has mental incapacity and therefore unable to perform her duties were established to the required standard of proof and recommended that she be removed from the office of judge of ELC. Justice Gitumbi, however, contested the tribunal's findings at the Supreme Court claiming that she was not accorded a fair hearing and that they had not established that her mental incapacity had made it impossible to carry on the duties of a judge. However, the Supreme Court upheld the findings of the tribunal that the judge was unfit to continue holding the position. "She had the opportunity to improve but was unable to due to her mental illness. We agree with the tribunal's finding that by the time of her removal from office, it was evident that her performance was below the expected standard and there was a need for intervention," ruled the judges. According to the judges, they relied on reports from doctors, psychiatrists, and other judges and judicial officers which confirmed that Justice Gitumbi's performance was adversely affected by her mental health condition. They added that the illness made it impossible for the judge to do her duties since her absence from duty resulted in cases in her docket being re-allocated to other judges which resulted in poor performance due to a huge case backlog. "Although we established that the judge is unable to perform her functions which require immense alertness, endless concentration, presence, and good frame of mind, this is not to mean that she cannot undertake other duties about the legal profession which she can do," they ruled. According to the judges, the record revealed that Justice Gitumbi admitted to being diagnosed with schizophrenia in 2008, but that she had been treated and recovered from the mental illness before being appointed to the Judiciary in 2012. It was also established that during periods of relapse, the judge experienced a lack of sleep and confusion. She would also be aggressive and avoid engaging in conversations. Medical experts had explained to the court and the tribunal that relapses could be attributed to low medication, too much medication, non-compliance in taking medication, environmental factors, and a stressful work environment.

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