It’s tough job removing a judge from office

The media has been brimming with reports and claims of petitions filed before the Judicial Service Commission seeking to remove a number of judges.

A look at the petitions or reports concerning them makes one wonder what their justification is.

Most of the petitions are based on litigants who appeared before the judges and experienced less value than they would expect from a court of law — that is, that the judges acted incompetently in handling the cases before them.

In other instances, the complainants allege that the judges engaged in acts of gross misconduct such as bribery.

All over the world, the law is that a judge ought to hold office quamdiu se bene gesserint, that is, during good behaviour.

PUBLIC TRUST

In Kenya, the Constitution specifies rather narrowly the grounds on which a judge can be removed from office.

These include incompetence, bankruptcy, inability due to mental or physical illness or gross misconduct.

Some have exclaimed that the deluge of petitions for the removal of judges signify that the Judiciary has lost trust or that it faces a crisis. My answer is, not so quickly.

The Judiciary still carries the greatest faith of the citizens over the legislature and the executive branches of government.

Though it is easy to say that the complainants are mostly bitter losers who wish to tarnish judges after the loss of a case, it must also be borne in mind that the citizens and lawyers who complain against judges may be those who genuinely want the preservation of the allure of the Judiciary as the guardian of what is left of Kenya’s democracy.

PETITIONS

Complaints against judges are not new but as the Indian Supreme Court once said: “A single dishonest judge not only dishonours her/himself and disgraces his office, but jeopardises the integrity of the entire judicial system.”

Complaints have been and continue to be made for the removal of judges from their offices in all countries and throughout the history of existence of the Judiciary as an arm of government.

Countries deal with them differently. In Kenya, petitions are sent to the Judicial Service Commission, the US and India have a system of impeachment of judges by the respective houses of parliament.

In these countries, the complaints are presented to the lower legislative body which deliberates and thereafter tries the judge (impeachment) as a tribunal would do in Kenya before they vote to decide whether the judge should be removed from office.

IMPEACH

Even in the hallowed US Supreme Court, Justice Samuel Chase remains the only judge ever to have faced impeachment following complaints against him.

In January 1805, a select committee was formed to investigate Justice Chase on eight complaints.

The main one was political bias on his part which it was claimed had led Justice Chase to treat parties and their advocates appearing before him unfairly.

These complaints related to his judicial functions outside the Supreme Court. The charges were dismissed and Justice Chase resumed his work at the Supreme Court.

It is said that the dismissal of these complaints set a principle to ensure that the Judiciary in the United States would always weather partisan challenge.

This went ahead to establish a precedent that a judge would only be removed from office for acts of outright criminality.

FULLER RESIGNS

More than a century after the case of Justice Chase, a complaint was raised in the Senate seeking the removal of three judges for too much feuding in public.

The public in Oklahoma demanded that judges Luther Bohanon, Alfred Murrah and Stephen Chandler were acting disgracefully and demanded their impeachment and removal to bring an end to their querulous public exchanges.

In 1968, the Senate subcommittee on Judicial Behaviour found that the conduct of the judges was reprehensible but not criminal as to justify impeachment and removal.

The threat of a complaint or investigation can cause a judge to remove himself from office.

In 2014, Judge Mark Fuller of the District of Alabama found the full force of the law when his wife reported to the police that he had engaged in domestic violence.

Despite having accepted a plea deal that would allow his record of violence to be expunged, a complaint was made by a third party to a Congressman.

After investigation, the charges were sent to the House of Representatives committee which informed the judge that he would be impeached if he did not resign. The judge resigned.

TORTURE MEMOS

Going through the US judicial history, one can say that the complaints against a judge do not always come in good faith.

Justice Jay Bybee of the Ninth Circuit of the United States Court of Appeal experienced this.

He had worked in the Department of Justice in the Bush administration when the war in Afghanistan was waged.

He was part of the legal team that gave an opinion on what came to be known as the “Torture Memos”.

These were legal opinions which appeared to justify interrogation methods that were used on treatment of persons at the Guantánamo Bay interrogation camp.

The legal opinion somewhat justified the truncation of internationally accepted principles of treatment of prisoners of war and held that the high-ranking al-Qaeda member captured outside the United States did not merit the strict protection of the Geneva Conventions against torture and inhuman treatment.

LAVISH LIFESTYLE

The war was particularly unpopular with the Democrats in the US.

A complaint to the House of Representatives called for the impeachment and removal of Justice Bybee for having participated in the issuance of those memos that justified torture on the ground that this act was professionally unethical.

However, there was no action on this complaint after it was found out that there was no unethical conduct on the part of Justice Bybee.

Judges can live lavishly and expect the treatment of royalty at public expense.

In August 2018, the State legislators in West Virginia expressed their disgust at the lavish tastes of all the judges of its Supreme Court and voted for their impeachment and removal.

The reason was that they had engaged in lavish spending of the State money for their personal comforts.

One of the grounds was that the four Supreme Court judges had spent $1 million to refurnish their offices.

One of the judges had spent $42,000 of public money on an antique desk in his home.

PAST SINS

India makes the other country with interesting complaints for the removal of judges.

In 1993, a complaint was filed against Justice Ramaswami of India’s Supreme Court.

The complaint was that he had permitted extravagant use of public money on his private residence while he served as Chief Justice of Punjab and Haryana in 1990.

However, the motion to remove the judge from office failed to acquire the two-thirds majority and Justice Ramaswami kept his job.

Still in India, Justice Soumitra Sen of the Calcutta High Court resigned after one house of India’s parliament passed a motion for his impeachment.

The bit of concern is that these complaints related to conduct before he assumed judicial office.

The charges against Justice Sen were not only about his having misappropriated State money while acting as a court-appointed receiver but also that he had misrepresented facts before a court in 1983, almost 28 years before this complaint was made.

It does seem that judges can even be judged for acts which occurred before getting on the bench.

PORNOGRAPHY

Having seen that judges can risk losing job for what they did before taking office, the instances of the four judges who lost their offices for what they saw in office in the United Kingdom will come as no surprise.

In 2015, the Judicial Conduct Investigation Office of the United Kingdom commenced investigations into allegations that some judges had viewed pornographic materials on their office computers.

The investigation body then recommended the removal of the judges saying that these were an inexcusable misuse of the Judiciary’s information technology resources and wholly unacceptable conduct for the office of a judicial holder.

The point was made that although viewing pornography for an adult in itself may not be illegal, doing so on office equipment is a serious act of misconduct that undermines public confidence in the Judiciary.

DEMI GODS

It may appear that judges are treated with awe during good behaviour but perhaps very harshly in the event of their making mistakes.

One can argue that judges are but just citizens like everyone else who should not be unfairly burdened with the obligation of moral potentates.

But one needs to remember the words of the committee which investigated the cased of Justice V. Ramswami: A judge’s morals are not the standards of the marketplace but are the “punctilio” of a higher code”.

Sekou Owino is Head of Legal, Nation Media Group