A controversial judicial code of conduct and ethics could open a can of worms after allowing consensual sex within the Judiciary and opening relationship bracket beyond husband and wife affair.
Although the code published in a special Gazette issue on July 29 condemns sexual harassment by a judicial officer on a colleague or any other person in the work place or in a social situation, it rules out sexual offence allegations in situations where both parties had mutually consented to a sexual involvement.
“Consensual sexual behaviour that is based on mutual attraction and reciprocated shall not constitute sexual harassment,” the new law reads.
But even more intriguing is the distinction in the definition of who amounts to a spouse to a judge, as compared to a judicial officer.
Whereas the code of conduct and ethics is explicit that a judge’s spouse “means wife or husband of a judge married under any recognised system of law in Kenya”, it expands the scope as to who would be considered a spouse to a judicial officer.
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A judicial officer’s spouse includes “any person who is in a relationship with the judicial officer which, but for absence of marriage, has the character of a relationship between two persons who are married”.
This means any person in a relationship commonly known as ‘come we stay’ with a judicial officer would qualify as a spouse under this code. A judicial officer includes Magistrates, Registrar or Kadhi of all grades employed by the Judicial Service Commission.
The code is, however, explicit that suggestive gestures, jokes or comments, text messages, videos and pictures will land the officers in the wrong hands of the law because they have been clustered as part of sexual harassment. Suggestive noises too will not be allowed.
Making intentional and careless physical contact that is sensual in nature will not be allowed. The definition of spouse and sexual harassment clauses are new, as they were not in the old law on ethics and conduct.
In the old law published in 2003, sexual harassment had been left out and a blanket definition of a judicial officer’s family given.
A clause that had allowed judicial officers to engage in social and recreational activities such as art, sports and others was expunged in the new law.
Similarly, the clause that had prohibited the officers from making public statements and communicating with the press was also deleted in the new law.
“A judicial officer and any officer in the Judicial Service, whether on duty or on leave of absence, should not allow himself to be interviewed on questions of public policy affecting Kenya or any other country without the permission of the Chief Justice,” the revoked ethics code read.
“Any lack of discretion likely to embarrass the Government or the judicial service may result in appropriate consequences for the officer responsible.”