Best practice and guidelines on arresting judicial officers

On Thursday, the police in Kenya took the rare and unprecedented step of going into the High Court precincts in Nairobi where they conducted a search of the judges’ chambers – as judges’ offices are known in legal language. The intention was supposedly to find some cash the judges may have received and been holding in their chambers.

Thereafter, the two judges were taken to the Directorate of Criminal Investigations where they were questioned and may have recorded statements. It appears all these efforts yielded nought for the police.

As would be expected, there was outrage all over the country and from many quarters, including from the Chief Justice. These objections were not just because there appeared to have been a serious miss on the part of the overzealous policemen.

There was concern that the audacious act of invading the precincts of court and even searching a judge’s office is almost inimical to the rule of law, leave alone the personal humiliation that came upon the judges when they were forcibly drawn from the court buildings to record statements.

Kenyans were divided on this issue, with lawyers terming the act unconstitutional and against the inter-departmental comity expected of various government agencies when dealing with senior officials of each branch. 

To most advocates, the act of police invading the courts of justice is sacrilegious disregard for the temple of justice that the courts are. There is a long-established common law principle that judges need to be treated with care even when investigating them for crimes.

The thinking goes that because the courts belong to the sovereign as in England, its officers must not be mistreated as that constitutes disregard for the sovereign realm. This could be extended to the Kenyan judges, and the Constitution is clear that they are bearers of judicial authority as granted by the citizenry, who are the sovereign.

Sovereign authority

There are two issues of constitutional significance here. The first is that of equality of the branches of government. In the same way that a legislator may not be arrested within the legislative chambers on account of respect for the legislature as a carrier of the sovereign authority of the republic, the judge as an officer of another arm of government must be accorded like regard within the physical judicial buildings. The arms of government enjoy constitutional parity, and so must their officers in the performance of their functions and while in their respective half of operation.

It bears a reminder that even as the police claim to investigate crime, even the lightning rod that is corruption in Kenya, it cannot have carte blanche to do as it pleases, in the guise of investigating serious offences. 

This brazen disregard of the Constitution is as much a perversion as the corruption that the police claimed to have been investigating in the case of the two judges who, it is clear, were not guilty of any wrong. Corruption is not just bribery and embezzlement of public money, it is also the misuse of state resources including police investigatory powers in a way that undermines the law and public order functions of other branches of government – the judiciary no less.

The second issue is how then should a judge who may have committed an offence be handled? There is by no means any suggestion here that judges cannot commit offences. Neither is it claimed in any quarter that judicial officers cannot be investigated and even arrested on suspicion of criminal conduct.

Investigation, questioning and arrest of judicial officers is a troublesome issue the world over. 

The Thursday incident reminds one of the cavalier and raw manner in which Uganda’s former Chief Justice Benedicto Kiwanuka was treated in 1972. 

He was abducted within the High Court premises in Kampala by the police, handcuffed and bundled into a car, never to be seen again. In this case, the police were clearly an aggressor within the court buildings.

Arrested and handcuffed

The other case was in 1991 in India. It involved Delhi Judicial Service and the State of Gujarat. 

The case related to police excesses on a chief magistrate who had been angered that the police were uncooperative by not effecting summons, warrants and notices required by the court. 

When the magistrate complained, he was invited to a police station to review some documents. 

While at the station, the magistrate was assaulted, arrested, handcuffed and tied with a rope. 

He was photographed and the images sent for publication in the newspapers.

This dispute went all the way to the Indian Supreme Court. 

Firstly, the court held that no person irrespective of his station or designation is above the law and all must face the penal consequences of his infraction of criminal law. 

Suspected of criminal conduct

However, the Supreme Court went ahead to state that the manner of treatment of the chief magistrate constituted criminal contempt of court. 

The police inspector who had been in charge of the action was sentenced to a term of six months in prison.

Bu the case is important because the Supreme Court went ahead to establish guidelines for handling judicial officers suspected of criminal conduct. 

The first of these is that if a judicial officer is to be arrested, it must be done under intimation to a superior of the officer in question. 

If this is not in any way possible, then the fact of arrest must be communicated to the superior simultaneously with the arrest. 

Secondly, the judicial officer should not be taken to a police station without the order of a superior judicial officer.

Source of discomfort

Thirdly, the judicial officer must never be handcuffed unless he violently resists arrest. Even then, the superior officer to the judicial officer must be informed immediately to ratify the handcuffing by an order. The burden of proving that the judge was resistant to arrest lies with the police. 

Failure to comply with these guidelines would not only constitute criminal contempt but would also constitute misconduct on the part of the police officers. In addition, the judge would be entitled to a claim for damages.

These guidelines are well established. In England, Judge David Tapp was arrested as part of a corruption investigation in the year 2001. 

Even before the arrest, it was said the officers had worked closely with the department that was then responsible for running the judiciary in England, the Lord Chancellor’s office and the Crown Prosecution Service.

In short, the procedure at least in countries that share the English Common law with Kenya, are clear that the approach to arrest and or arraignment of judicial officers under investigation must first involve and receive the concurrence of the superior judicial officer before any arrest is effected.

This explains why the manner in which the invasion of the judges’ chambers was conducted last week was a source of discomfort. 

The police would do well to heed the international best practice on this issue.

The writer is Head of Legal at Nation Media Group PLC