Last week’s developments within judicial sanctums in Kenya and at the International Criminal Court have demonstrated again the need for robust mechanisms of judicial accountability.
In the Kenyan context, a complaint by Rashid Mohammed claiming that the Registrar of the Supreme Court, Esther Nyaiyaki, had doctored her Scrutiny Report on Presidential Election Forms that partly informed the court’s drastic and highly consequential decision to invalidate the August 8 election, the DPP instructed the Director of Criminal Investigation to probe the matter.
Similarly, a leaked investigative report by a consortium of media actors in Europe including the respected German paper Der Spiegel, has exposed the former Prosecutor of the ICC as having sought to influence prosecutorial decisions, including in the Kenyan cases after leaving office.
The over 40,000 leaked documents also show that Moreno Ocampo owned several companies in tax havens which received funds from dubious sources, creating doubt on his integrity.
While the two cases bring to the fore serious concerns on the conduct of judicial officers, which ought, in the interest of preserving the credibility of these judicial institutions, to invite immediate investigation, the reaction of judicial authorities in Kenya and at The Hague provide interesting contrasts.
The Kenyan investigation against the Registrar has strongly been resisted by the Supreme Court, with support from sections of the Law Society on grounds that such investigation was an affront to judicial independence and that the Judicial Service Commission (JSC) was the proper body to investigate, if at all.
Whilst the JSC has supervisory jurisdiction in employment or disciplinary matters concerning its employees, it is arguable whether this ousts the constitutional and statutory role of law enforcement agencies such as the EACC, the Director Public Prosecution and the Anti-Money Laundering Advisory Board to investigate and prosecute a criminal complaint against judicial staff.
The case of AbdulkadlrAthman Salim EIKindy v Director of Public Prosecutions & another (2017) is authority for the proposition that judicial officials including judges are not immune from criminal culpability on grounds of judicial independence.
On the other hand, Ocampo’s leaked reports have (in contrast to the attempted cover-up at the Kenyan judiciary), already elicited reaction from the ICC which appears very keen to restore its credibility severely battered by numerous criticism in the past arising from the conduct of its’officials in cases of Sudan, Kenya and even Uganda.
Investigation against Ocampo has been speedily initiated with the ICC’s Independent Oversight Mechanism (IOM) established under article 112 of the Rome Statute (and operationalized only a year ago at Kenya’s behest).
By Resolution 5 of the Assembly of States Parties adopted on December 10, 2010, the IOM is empowered with proprio motu powers to investigate based on the understanding that such power does not impede the authority or independence granted by the Rome Statute to the Presidency, Judges, Registrar or Prosecutor of the Court.
A puritanical view that has particularly gained traction in Kenya appears to be the Judiciary is beyond accountability (except perhaps to itself). This couldn’t be further from the truth. For most people, there is a belief that judges and judicial officials are insulated from the wave and waft of politics, patronage or corruption.
It is assumed that courts are institutions in which justice is supposedly dispensed in accordance with transparent legal rules and norms. This judicial asceticism from influence is deemed to apply at all time, in all places and equally to all people; hence the notion that justice is blind.
This unfortunate position has luckily been contested in the recent years. Indeed, Professor Griffiths, celebrated Professor of Administrative law at London School of Economics in Politics of the Judiciary (2010) argues that “Neither impartiality nor independence necessarily involves neutrality.
Judges are part of the machinery of authority within the State and therefore cannot avoid the making of political decisions” or even undue influence from interest groups. Oloka Onyango, Makerere University legal scholar lends credence to this view when he asserts that “The balance that a judge has to maintain between discretion and obeisance, between creativity and conformity, the twin shoals of usurpation or passivity is indeed open to contestation.”
Kenyan law has generally enlarged the accountability of all those who wield public power; judges and judicial officers are not exempt. Behind this notion is the proposition that wielders of power are entrusted with stewardship over a given governmental function by the people, to whom they must all account, either directly or indirectly.
Once citizens are seen as the ultimate repositories of sovereign authority in a nation, the principle requiring the accountability of the judiciary to the citizens, or their representatives becomes irresistible. Yet this principle must be achieved without undermining, the essential characteristic of the judiciary, its independence.
Therefore, to frustrate legitimate investigation by other independent organs of government against judicial officials, rather than advance judicial legitimacy, only serves to create doubt among the citizenry on the ability of courts to be fair and impartial arbiters especially of complex and contested disputes.
(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President)