Friday, 5 October 2012

When Recusation of Judges Becomes Necessity

“The law is the true embodiment of everything that’s excellent. It has no kind of fault or flaw and I my lords, embody the law.”  Lord Chancellor’s Song, Iolanthe. Indeed, the judge is the human expression of the legal instruments and tenets that guide and rule the society, an extension of that written judicial power and law. The excellence thus of a Judge’s mind is of paramount significance in the execution of that judicial power. 

When Justice Mohamed Warsame issued court orders halting the work of the Judges’ and Magistrates’ Vetting board, in a case where the sacking of Supreme Court Judge Mohamed Ibrahim and Court of Appeal Judge Roselyn Nambuye was being challenged, that very moment he made such a ruling, that was the moment that the excellence of the Judge fell far below the excellence of the law. Indeed, his actions embodied the very impunity that the Vetting board sought to excise and be done away with, in a much needed and much desired Judicial review process.

Were Justice Warsame as validated in law by excellence of action as his role demands, his first and only action when such a case came before him should have been to recuse himself, given the mitigating circumstances and the defending party. But instead, the ruling he made was a blatant disregard of the very constitutional framework that grants him the honor of being referred to as “Your Honor”. 

Every week in this country of ours, we are bombarded with yet another voracious example of utterly humiliating mediocrity from this country’s heads of government; examples of sheer selfishness, of reckless negligence and now of shameless and disgraceful behavior from the pillars of the fabric of society.

‘Since the viability of any judicial system is predicated on the impartiality of the judge, it must either postulate a fiction of absolute virtue, or establish a procedure whereby judges can be disqualified for bias or prejudice.’ Harvard Law Review, vol. 73.

We are far from being able to spin a fiction on the virtues of our judges, hence the need for a Judges’ and Magistrates’ vetting board in the first place. So our only remedy in this situation is to enact procedures to recuse this Judge, who were he a virtuous fellow of excellence in thought, would have already recused himself in the first place. 

Indeed it is the lack of virtues presented by our Judges that has compelled the Vetting Board to sack a few for their soiled integrity.  Let’s be very clear at this point, it is not simply a matter of losing one’s livelihood that is at stake when a Judge is sacked, but a ripping apart of years of vestiges of now seemingly unwarranted respect, honor, value and eminence that the rest of society ascribed to a Judge.  In Justice Warsame’s case, he stripped himself of any of these vestiges of virtue, honesty and integrity before the vetting board could do it for him. After all the question to ask is, if he can make such an unconstitutional ruling that in turn affects his own future review, then what sort of injustices has he handed down that caused him to act in such an offensive manner?

The main issue now in this matter is the question of Recusation of Judges and the grounds for which such action should be necessitated. It is my humble opinion that a mind that uses his position of power to commit a constitutional offense while at the same time sworn by duty and state to protect the tenets of that constitution and the law there in, is quite fractured. There is clearly a dissonance in the cognitive capabilities of one’s process to marry one’s job with one’s obligation in this case and as such I strongly believe that there are psychiatric grounds for Recusation. Anti-excellence in law from a Judge is equivalent to a sociopathic tendency, in my view. 

This nation has no shortage of psychopaths; people whose ability to consider the consequences of their actions beyond their own immediate benefits is gravely limited to the point of non-existent. It is a dreadful shame that such people have found their way into the higher most echelons of power, and worst of all to positions that demand excellence of virtue.  Recusation is one remedy, the other is what the Chinese favor, a bullet, swift and to the point. The only problem is, is there a lawyer with the guts to be the litigant for Recusation of a Judge? Some may say the Kenyan common law lawyers are the bedrock of debacle that Judges are raised from. I only hope that is not true.

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