Fearlessness alone does not a good judge make

The dismissal of one of Kenya’s most courageous lawyers as a Supreme Court judge has shown that fearlessness alone does not a good judge make.

The Judges and Magistrates Vetting Board’s declaration on July 20 that Mohamed Khadar Ibrahim was unfit to be a judge has shaken the legal profession. Ibrahim was seen as a reform-minded judge because of his credentials as an opponent to the autocratic rule of then President Daniel arap Moi and his judgements.

Ibrahim, who was detained without trial for a month in 1990 for challenging Moi, was noted for his openness as a judge. During his nine years on the bench he never took to the culture of some judges of staying aloof or mingling only with the elite of society. To his credit also, there were not even whispers questioning his integrity or his impartiality.

However, the Board found that Judge Ibrahim had a huge case backlog that he did not clear despite making promises to do so. His good qualities as judge ended up being marred by his seeming inability to write judgements and rulings on applications in 264 matters that came before him when he served at the High Court.

The Board recognized that Kenyan judges and magistrates work in difficult circumstances, exacerbating the collective backlog the judiciary has to overcome. For starters, judges take down the proceedings in long hand. The courts do not have stenographers or automated transcription. The Board noted, however, that many judges have still been able to work around these limitations.

An example is Ibrahim’s fellow Supreme Court judge Jackton Ojwang. Like Ibrahim, he was elevated to the country’s highest court while carrying a huge backlog. The difference between the two is that Ojwang, who had suffered poor health for some time, worked to clear the 145 matters pending once he recovered from his illness. By the time the Board was interviewing about his time as a High Court judge, he had no pending cases to handle.

By declaring Ibrahim unfit, the Board was effectively dismissing the Supreme Court judge because the constitution has decreed the board’s decisions are final and cannot be challenged in court. Any judge who disagrees with the Board’s decision can apply for a review, and any decision in relation to that application is also final and cannot be challenged in court.

The Judges and Magistrates Vetting Board is a mechanism that was written into Kenya’s nearly two-year old constitution as a response to the low confidence the public had in the judiciary due to rampant corruption, lethargy, and lack of independence that permeated it. Individual judges have shown independence of mind through the decades, but the judiciary as an institution has always been seen as beholden to the powers that be. Since Kenya gained independence from Britain in 1963, the president has had unfettered powers to appoint members to the bench and its supervisory body, the Judicial Service Commission. The judiciary, however, reached its lowest point during the 24-year rule of Moi between October 1978 and December 2002.

This is what makes the dismissal of Ibrahim stand out because as a lawyer in private practice he stood up to Moi at a time when many members of the bar just went about the business of the law without seeming to care about the decline of the country under Moi. When Ibrahim was appointed High Court judge in late 2003, it was seen as a sign that things are beginning to change in the judiciary because Moi was no longer president and Ibrahim, a former detainee under Moi, could now serve on the bench.

Ibrahim’s dismissal highlights the need for constant and consistent review of judges’ work, especially once the Judges and Magistrates Vetting Board complete their work. The Judicial Service Commission has spent the past year or so institution building. The Commission has held public interviews for the posts of Chief and Deputy Chief Justice and Supreme Court judges. It has also had to fill the vacancies caused by the elevation of some judges to the new Supreme Court and recruit additional High Court judges needed to help clear the backlog of cases. In this way, the Judges and Magistrates Vetting Board has acted as a second check on the work of serving judges.

This is apparent from Ibrahim’s case. The Board said that during his interview for the position of Supreme Court judge, Ibrahim told the Judicial Service Commission that he had quite a number of pending matters but was not able to give an accurate figure. The same happened during his interview before the Board. It is only when he requested for and was granted a week to confirm the quantity and type of matters pending before him, was Ibrahim able to provide them with an audit of the delayed cases he was still handling.

Therefore, once the Board has completed reviewing all the work of judges and magistrates who were appointed to office before the new constitution took effect, the Judicial Service Commission will have to come up with a rigorous mechanism to monitor and remedy any inadequacies of the judiciary.