Peter Mwaura
10 May 2008
Nairobi — Last week, two judges were sacked following the findings of a tribunal that they were involved in corrupt and unethical behaviour. However, corrupt and unethical conduct is not the only judicial behaviour that leads to miscarriage of justice and undermines public confidence in the judiciary.
Corrupt and unethical behaviour is only the evident part of a probably much bigger problem: incompetence.
Judges who are incompetent can cause as much, if not more, injustice and suffering.
Incompetent judges should be purged, just like corrupt ones. Because the judiciary rests on public trust and incompetent judges, just as corrupt ones, cannot inspire public confidence in the legal system.
What is an incompetent judge? It is one who does not do his or her job professionally; a judge who fails to follow the law and exercise even-handed judgment based on the rule of law.
It is a judge who is not up to speed on the provisions of the law.
The nature of the job requires that a judge is faithful to the law and the Constitution and maintains professional competence in it.
It also requires a judge who is patient, dignified and courteous.
An incompetent judge is a judge who does not perform at an acceptable level of productivity. Court hours are from 8.30am to 5pm.
But many cases do not start until well after 9am and end well before lunch. No wonder, cases drag on forever and there is a huge backlog.
Many judges take overly long to write and deliver judgments after the hearing ends, in some cases several months, thus denying justice through delay.
A competent judge disposes of all judicial matters promptly and fairly. Incompetent judges allow cases to drag on for too long without legal justification.
Incompetent judges lose their temper in court and resort to intimidating lawyers and witnesses.
Incompetent judges have no grasp of the relevant laws, leave alone how to apply the facts of the case to the relevant laws. Incompetent judges are fussy about form rather than substance.
Incompetent judges cannot take decent notes of what is said in court, leave alone write a coherent and reasoned judgment.
The judicial purge should therefore not be confined to corrupt and unethical behaviour.
In any case, we will never be able to catch all the corrupt judges.
The two judges who were sacked were sacrificial lambs; they were not the only ones who could possibly have been found corrupt and unethical. Many escaped.
Besides, judges are corrupt because members of the public are willing to pay bribes.
In those circumstances, what can be done about corrupt judges is limited because you would need to have willing accusers coming forward to provide evidence.
What can be done with more chances of success is to get rid of judges who are incompetent.
This presents no particular problem of evidence. Just review the written records of the cases they handle, and they stand out like sore thumbs. No hearsay. No witnesses are required. Their written account of proceedings, behaviour in court and judgment is all the evidence you need.
An incompetent judge is, therefore, easier to detect than a corrupt one. And the Court of Appeal records are a good place to start.
In fact, the Court of Appeal could be the principal prosecution witness. Time and again this court has castigated judges who are incompetent, inefficient and do not follow the law.
Only a few weeks ago the court set free two convicted robbers because the trial magistrate had not signed the judgment as required by the provisions of Section 169 of the Criminal Procedure Code.
To boot, the magistrate did not indicate the language in which the trial was conducted, as required by law, and delivered the judgment more than five months after the hearing of the case.
There was also contradictory evidence from two prosecution witnesses and the magistrate did not deal with the inconsistency.
Neither did the High Court judges who handled the case on the first appeal. The Court of Appeal criticised the judges because they did not bother to analyse and evaluate the evidence as required by law.
In another case, the Court of Appeal lambasted a High Court judge for her judgment which, it said "tarnish the judicial reputation of the learned judge."
They accused the judge of being unreasonable, peremptory, imperious and arbitrary in her decisions, and of not following the law.
The judge is still on the bench. Of course, she could have improved her performance since that criticism.
However, that does not change the fact that she handled cases when she was adjudged by the Court of Appeal to be incompetent.
Clearly, incompetence is almost as bad as corruption, may be even worse.
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