Why judges cited for misconduct in land case remain unidentified

Readers questioned why the Nation didn’t name the judges accused of misconduct in the story on the three-billion shilling Juja land dispute. The non-identification of the judges raises crucial issues about transparency, accountability and the principles of due process in journalistic reporting. 

The Nation story is headlined “Why 10 judges face ouster over Sh3bn land feud” (Daily Nation, Nov. 25, 2024). According to Article 168 of the Constitution, judges may be removed from office for various reasons, including gross misconduct or misbehaviour. 

This is particularly relevant in the dispute involving the Muigai brothers who are petitioning for the removal of the judges. Former President Uhuru Kenyatta’s cousins allege that the senior judges upheld a non-existent consent order to auction their land. They also claim the 443-acre land was worth Sh1.3 billion when it was auctioned for Sh70 million in 2007. This, they argue, violated their property rights. 

The decision by the Nation not to name the ten judges is supported by the presumption of innocence. Like any individuals accused of wrongdoing, judges have a right to be presumed innocent until proven guilty. Disclosing their identities at this stage before formal charges can lead to unfair reputational damage. 

Moreover, naming the judges now could impact on investigations. The investigations by the Judicial Service Commission (JSC) could be prejudiced by premature naming, possibly affecting public opinion and the integrity of the inquiry. 

Professional integrity is also an important consideration. Judges have an inherent right to protect their reputations against unsubstantiated claims. Until a judicial determination is reached, their personal and professional standing should not be unnecessarily compromised. 

Identification of judges

There are other legal considerations. Naming accused parties in such a sensitive case, prior to adjudication, could complicate the legal landscape, including attracting defamation suits.

Contrariwise, there are compelling arguments for the identification of judges in cases of alleged misconduct. Judges wield substantial authority, shaping significant and even life-changing legal outcomes. Naming them publicly fosters accountability and allows citizens to scrutinise their conduct. Public awareness of who makes significant judicial decisions supports transparency and trust in the legal system.

Naming accused judges also helps the public to recognise judicial patterns. It facilitates informed public dialogue regarding potential patterns of ineffectiveness or bias in judicial behaviour. Further, naming encourages ethical conduct. Knowing that their actions may be scrutinised publicly could encourage judges to uphold higher ethical standards.

Besides, the public has a right to know. The role of the media includes shedding light on matters of significant public interest, including issues related to governance and justice. However, balancing these perspectives requires discretion and an understanding of the specifics involved in each case. 

Given their public role and impact on society, transparency regarding judges’ actions could be crucial for maintaining public trust in the Judiciary. Ideally, the media should adopt a principle of initial confidentiality regarding the names of accused judges, reserving public identification for when formal investigations yield actionable findings. Thus the Nation should continue to respect the presumption of innocence by not naming judges until concrete evidence arises.

Presumption of innocence

All in all, the decision to identify the judges accused of wrongdoing should be approached with caution. The media should focus on informing the public accurately about serious allegations while respecting the rights and dignities of the individuals implicated. The pursuit of justice hinges on maintaining balance between accountability and the critical presumption of innocence.

Ultimately, whether to retain anonymity or disclose identities should be guided by the context of the allegations and the potential repercussions involved. A cautious approach might suggest withholding names until substantial progress, such as a formal charge, is made.

In the Muigai brothers’ story, there is also the issue of phrasing of the headline “Why 10 judges face ouster over Sh3bn land feud”. The headline suggests a definitive outcome in an evolving investigation. Such wording may create bias, as it presumes guilt before a thorough examination of the facts. A more neutral phrasing could have been written to better reflect the situation without implying that the judges are already at fault. Example: “Petition filed seeking removal of 10 judges over Juja land dispute”.

The allegations made, if validated, do indeed point to serious concerns regarding the judges’ conduct, which could be classified as gross misconduct. However, it remains uncertain whether the petition will succeed. The final determination will depend on the evidence submitted and the findings of the JSC. 

So the judges should be spared, at this stage, the embarrassment of being named.

The Public Editor is an independent news ombudsman who handles readers’ complaints on editorial matters including accuracy and journalistic standards. Email: [email protected]. Call or text 0721989264