You could almost hear a sharp intake of breath around the world’s human rights community when news broke at the weekend of moves to impeach Kenya’s Chief Justice, David Maraga. Just days before, he had been one of a Bench of judges that found Kenya’s 8 August elections invalid and ordered a re-run. Now, a member of the disappointed political party – apparently trying to get his own back – claimed that the judge was part of an international ‘regime change’ conspiracy, and petitioned for an inquiry leading to dismissal.
The MP has subsequently agreed to withdraw his petition, at least for the moment. The content of his spurious complaint is worth examining in some detail, but for now it serves another purpose: it puts Kenya on the growing list of African countries in which the judiciary, judicial independence and the rule of law, are all under serious threat.
One of the most extraordinary of these stories concerning current threats to the judiciary comes from the Seychelles. Over the past months this column has noted the bizarre behaviour of a prominent judge from that jurisdiction, Judge Durai Karunakaran. He is a senior member of the Bench and was even acting Chief Justice for a period. But his judicial behaviour became increasingly inexplicable and ultimately even appeal judges, called on to revisit decisions he had made, found they had to comment and chide him.
Eventually Karunakaran was the subject of an impeccably documented complaint by the Chief Justice, Mathilda Twomey, the first woman appointed to that post in the Seychelles. Her complaints launched an official inquiry, and in its report the tribunal appointed to hear the matter has reached the unanimous conclusion that he must go.
Under the Constitution, that should be the end of the matter: the country’s President, having received the report with its unanimous recommendation, is obliged to dismiss Karunakaran. Three weeks later, however, nothing has happened. At least not to Karunakaran – instead though, believe it or not, the Chief Justice has been notified of a complaint against her, and she has herself become the subject of an inquiry.
The nature of the complaints has not yet been made public, but what has leaked into social media appears trivial – more than trivial compared with the findings against Karunakaran.
Among those findings, the tribunal concluded that Karunakaran’s misbehaviour made him unworthy of his judicial office. He had turned himself into a ‘master’ instead of a ‘servant of the people’ via behaviour that was ‘so serious and gross’ as to warrant a recommendation for his removal from office.
A few examples: in a number of cases he delayed hearing a matter, sometimes for many years, until eventually the parties gave up and dropped the application. This seems to have been his preferred method to avoid dealing with anticipated difficult conflicts.
In one such case among many, Francois Octobre wanted to sue the government of Seychelles for medical negligence after a doctor cut a ligament in his leg during surgery for an injury. According to medical opinion the damage could be treated overseas, and he brought a claim for compensation intending to use the money for that purpose. In 2002 the case was allocated to Karunakaran. For 15 years the judge repeatedly adjourned the case. It was only after the judge’s suspension last year that the Chief Justice was able to take control of the matter and finalise it. Octobre told the tribunal he was ‘young’ at the time of the incident and if he had received the compensation he sought he could have obtained the overseas treatment he needed. Instead, because of the delay, he had to ‘cry and suffer for many years’.
A second astonishing complaint – like the enormous delays this was viewed by the tribunal as behaviour warranting dismissal – relates to what can only be described as judicial fraud. These examples relate to cases in which Karunakaran made an order in open court. After the hearing, however, he made changes to the order without informing any of the parties, and doctored the court papers to obscure the fact that he had made these changes. As the tribunal put it, ‘In reality he forged the order of court,’ something the tribunal characterised as ‘serious and gross misbehaviour’.
A final example relates to behaviour that the tribunal criticised but found did not merit dismissal, a ruling that I find hard to understand, made in relation to behaviour that would, without doubt, have led to impeachment in South Africa. It concerns his relationship with the Chief Justice and his sexist views more generally.
When the new Chief Justice was appointed Karunakaran refused for some time to move from the Chief Justice’s office space. He continued to sign orders and letters as ‘acting chief justice’. He made it clear that in principle he did not believe a woman should be a Chief Justice, saying he was a ‘Shakespeare man’ and agreed with Shakespeare’s words: ‘frailty thy name is woman’. He shouted at her and behaved in a threatening way, causing her and a staff member to feel afraid. He boycotted her swearing-in ceremony and tried to intimidate her when she asked him about complaints she had received relating to cases he was assigned. Clearly, this inappropriate and aggressive behaviour was very real: at one point he apologised to her – possibly the reason the tribunal did not recommend removal from office on this particular ground.
Behind the almost incomprehensible inquiry being launched into the Chief Justice lies an unpleasant reality: changes to the composition of the Constitutional Appointments Authority (CAA) that deals with appointing judges among others, and with setting up tribunals to inquire into impeaching judges. These constitutional changes have dramatically increased the potential for political decisions on the CAA. While the CAA is chaired by a practising lawyer, the Chief Justice does not have a seat on the CAA – in fact not a single judge serves on that body. Consider a situation in which the Chief Justice, or any judge for that matter, reprimands or even finds against the chair or other lawyer-members of the CAA in court. It’s easy to imagine the potential for retribution via the CAA and its power to invoke a tribunal. It’s also easy to imagine the politicised CAA causing a feeling of insecurity among the judges, with their jobs and their career prospects in the hands of party politicians who appear regularly in the courts.
It is an alarming situation, caused by flawed processes and structures. And it is made all the more troubling by the continuing and inexplicable failure to dismiss Karunakaran on the one hand and on the other, pending action against the Chief Justice that smacks of little more than retribution for her wholly justified complaints against a rogue colleague.