Introduction I think that it was Woodrow Wilson who said: If I am to - PDF document

COMMERCIAL DIVISION – BAR BENCH – INN OF COURT COURT ETIQUETTE Introduction I think that it was Woodrow Wilson who said: “If I am to speak ten minutes, I need a week for preparation; if 15 minutes, three days; if half an hour, two days; if an hour, I am ready now.” It was the other Wilson, Edward O. Wilson who said: “I will be brief. Not nearly so brief as Salvador Dali, who gave the world’s shortest speech. He said, “I will be so brief I have already finished ” and sat down” . Mind you I think that George Burns had it right when he stated that: “The secret of a good speech is to have a good beginning and a good ending, then having the two as close together as possible.” The Bench Let me begin by acknowledging that portions of this paper were prepared and presented by Hon. Mr. Justice Bosire to the judges during the 2009 Judges Colloquium and Justice Visram’s presentation to the Judges’ Induction Course 2011. Judges occupy a special position in society. They come from different backgrounds with varying assumptions, beliefs and unique life experiences. Some of the judges were picked from both the public and private sectors; some from the practicing bar and others from the lower courts within the judiciary. Together, they represent a rich diversity of experience and knowledge that enriches the judiciary. The respective past of those appointed may be of great value as they carry out the judicial role, and at the same time it must be kept in check because as Judges they must learn to separate themselves as citizens from their positions as Judges. The Role of The Judge The Supreme Court of Canada had occasion to consider the role of a judge in society in the case of Therrien v. Canada (Minister for Justice) and Another [2001] 5LRC 575 . On 1

second appeal to the Supreme Court, that court in its consideration of the role of a judge quoted with approval the following words from The Canadian Legal System [1977] , by Prof. G. Gall: “The dictates of tradition require the greatest restraint, the greatest propriety and the greatest decorum from the members of our Judiciary. We expect our Judges to be almost superhuman in wisdom, in propriety, in decorum and in humanity. There must be no other group in society which must fulfill this standard of public expectation and, at the same time, accept numerous constraints.” That court itself thereafter said: “The Judge is in “a place apart” in our society and must conform to the demands of this exceptional status.” Madan J.A, put it differently but to the same effect, in the case of Butt v. Rent Restrictions Tribunal [1982] KLR 417 at p.419 . “A judge is a judge whether he is newly appointed or an old fogy. The former has the benefit of his latest learning, and the latter the advantage of experience. Both are men of honour and scholarly gentlemen. Both are conscientious and judicious individuals, imbued with reason. Both are dependable and do not make wild surmises. Both act upon consecrated principles. Both get a fair share of justice spills. Both are jealously scrupulous and impartial. Both are 24 carat gold. Both act free from doubt, bias and prejudice. Both carry the conviction of correctness of their decision. Both speak no ill of any litigant. Both are torch bearers for stability of society. Both are strugglers for liberty. Neither should however become an adviser instead of an adjudicator.” 2

It is clear from the excerpts quoted above, that the standard of conduct expected of a judge, be it in Canada, in Kenya or anywhere else in the world, is high. That is because the judge is the pillar of the entire judicial system, of the rights and freedoms which that system is designed to promote and protect, and the ideals of justice generally. The court in the Therrien case earlier cited, was categorical that the personal qualities, conduct and image that a judge projects affects those of the judicial system as a whole and, therefore, the confidence that the public places in it. For that reason, and there is no doubt about that, the public is entitled to demand irreproachable conduct from anyone performing a judicial function. The famous American Judge, Mr. Justice Benjamin N. Cardozo in the book “The Nature of Judicial Process” 1921 at p.141 summarized the exercise of judicial power as follows: “The judge even when he is free is still not wholly free. He is not to innovate at pleasure. He is not a knight errant at will in pursuit of his own ideal or beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and irregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.” It is becoming of a judge to be guided by the rule of law and therefore decide cases on the basis of evidence and known legal principles. 3

The Judge in Kenya: In considering the subject, the accepted standards of behaviour of judges, one has to consider the conduct of the Judges in and out of court. Before examining the conduct becoming of an individual judge it is important to state that principles of constitutionalism, upholding the rule of law, judicial independence and impartial independence, public confidence in the judiciary goes hand in hand with the integrity of judges. The judiciary requires a high degree of independence in order to fulfil its constitutional role to adjudicate impartially and to stand up to political pressure. Where the above-mentioned principles are lacking for one reason or another, it would be difficult for judges whether individually or collectively to meet the high threshold of the office they hold. For the first time in Kenya’s history the independence of the judiciary is now enshrined in the Constitution. This means that the judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.The conduct of a judge in Kenya is guided by the provisions of the new Constitution, the Judicial Services ’ Code of Conduct and various international Codes of Conduct such as the unreservedly upheld Bangalore Principles on Judicial Conduct adopted by an international gathering of Chief Justices in 2001. The Judicial Service Code of Conduct and Ethics Regulations clearly spell out principles on impartiality and integrity of judges, conditions under which a judge may disqualify himself from hearing a case, social and recreational activities that a judge may engage in, the extent to which a judge may engage in civil, charity and fiduciary activities. The regulations provide that a judicial officer and any officer in the Judicial 4

Service should not accept any property or benefit of any kind, in the discharge of his duties or by virtue of his official position. The Bangalore Principles set out what are now considered as universal standards of judicial conduct for judges whether in national, regional or international tribunals. The Bangalore Principles are primarily directed at judiciaries for implementation and enforcement, rather than the state. The Bangalore Principles set out six core values that should guide the exercise of judicial office, namely: independence, impartiality, integrity, equality, propriety, and competence and diligence. Under each value the principles describe specific considerations and situations of which judges should be aware in order to ensure the maintenance of, and public confidence in, judicial integrity. In the case of propriety, for example, the principles highlight the fact that the position of judge is one that carries significant responsibility and weight, and so a judge must accept restrictions that would otherwise be considered burdensome. These restrictions include not fraternizing with members of the legal profession who regularly appear before the judge in court, or not allowing family members to appear before the judge’s court as parties or lawyers since both give rise to the perception of favouritism and lack of impartiality, and undermine confidence in the administration of justice. The focus on practical guidance and specificity, compared to other international standards, makes them of direct utility to members of the judiciary. (i) The Judge Out of Court – The public expects judges to strive to conduct themselves in a way that will sustain and contribute to public respect and confidence. As people set apart for the special purpose of judging, they must avoid interaction with people of 5