Mmegi

Navigating judicial independence and accountability

Sharing experiences: Dingake PIC: NEWSDAY
Sharing experiences: Dingake PIC: NEWSDAY

I bring you greetings from the Second Republic of Botswana.

I have been asked to discuss the issue of navigating judicial independence and accountability in politically sensitive cases. In Kenya these cases include the three Raila cases on Presidential election petitions, the Building Bridges Initiative (BBI) case, the case of Gikonyo and Another v The National Assembly of Kenya and 4 others. In 2017 the Supreme Court of Kenya nullified the Presidential elections and ordered a re-run within 60 days. This was a first in Africa and the fourth in the world. It was a momentous decision. In the BBI judgement the Supreme Court halted the BBI, but did not declare it “null and void”. In the Gikonyo case the Supreme Court of Kenya declared the Constituency Development Fund (CDF) unconstitutional. Recently in the case of the Cabinet Secretary for the National Treasury and Planning and Others v Okiya Omtatah Okoiti and Others, the Supreme Court of Kenya upheld the constitutionality of the deeply unpopular Finance Act 2024 and public sentiment was that they capitulated to the Executive.

Paradox

Electoral disputes and other politically sensitive cases often present a paradox to the court because objectivity is often lost on account differing political interests of the populace. Scholars and international observers have high regard of the Supreme Court of Kenya decisions in politically sensitive cases. But public opinion is divided. Often the public views the court’s decisions through partisan political lens. For example, a survey of people’s views following the Supreme Court’s verdict in the 2022 Presidential elections, showed that 26.3 percent of the respondents who were surveyed were dissatisfied with the way the Supreme Court handled the 2022 Presidential petition, 43.8 percent said one of the reasons was that the decision was not based on evidence or was biased; 11.3 percent cited outside interference or coercion and 32.8 percent bribery.

About 18.2 percent said they were annoyed because the court did not nullify the election.

The above sentiments show that constitutional law (a discipline within which electoral law is situated) lies at an intersection of law and politics – and often courts are viewed as impartial only when their judgements align with political interests, while adverse decisions invite attacks on the judiciary. In these circumstances the question often arises whether the court can maintain its independence in the face of political pressure?

The judiciary must remain loyal to the constitution and never compromise its independence. Clashes between the judiciary and politicians in any constitutional democracy are not uncommon, especially when it comes to high-stakes election petitions. It is important though that the judiciary must avoid judicial overreach.

Navigating judicial independence and accountability

Navigating issues of judicial independence and accountability can feel like walking on quicksand or a slippery slope. This is because calls for accountability often have the potential to compromise independence and independence without accountability carries no public benefit. It can lead to lawlessness. There is an inherent tension between independence and accountability. It is hardly surprising therefore that much attention is often devoted to striking the “right” balance between these two concepts.

It seems to me that independence and accountability are not ends in themselves but a means to and end; that end being fair, impartial, and effective justice. Only a judiciary that is independent and accountable can be a true guardian of the constitution. Judicial independence refers to both decisional and institutional independence. A judge should be able to adjudicate over a dispute without pressure, intimidation and undue influence from any person or authority. Accordingly, to guarantee this independence most constitutions strive to give judges sufficient protection - such as guaranteeing job security, adequate and satisfactory terms and conditions of service. This is meant to ensure that they can make independent judgements without fear of adverse consequences.

Importance of judicial independence

Judicial independence is not meant for the protection of judges, but the protection of the public. It is precisely because an independent judiciary is a public good that a heavy obligation rests with the judiciary to ensure that the judges and the institution are strong enough to resist improper influence from the politically powerful. It requires a judiciary that exercises its authority according to higher principles of integrity and justice.

The question may be asked: independence from whom? The answer is independence from political influence, individuals, from crime syndicates and other non-governmental entities. In a society led by a strong man or woman, a country without democracy, or where civil society is weak and disengaged, the independence of the judiciary is in peril. Strong men or women often behave as if they are above the law – and often these types of leaders are quick to capture the judiciary so that it can do their bidding. An independent judiciary should not only resist undue influence from strong men and women but also from the democratically elected majority.

As Alexis de Tocqueville once said, in a democratic society the role of the judiciary is to protect the minority from the “tyranny of the majority”. Tension often arises when the judiciary imposes limits on what the democratically elected executive or legislature can do, to protect the rights of the minority. Attempts to pressurize the judiciary to align with the majority line can only be resisted by an independent judiciary. It must also be stated that judicial independence goes beyond insulating the judiciary from political pressure, as judges are also subject to threats and pressure from litigants, including society’s criminal elements and or criminal syndicates.

Importance of judicial accountability

Judicial independence goes side by side with judicial accountability. It is not enough that judges be independent. They must also be accountable. At its heart judicial accountability is meant to curb or avoid bad behaviour by judges. Judges are human, they can engage in conduct that is inconsistent with their oath of office. Like any other person judges can be corrupt too. Accountability is also a mechanism of discipling errant judges.

The question is often asked to whom are the judges accountable? Creating an accountability mechanism creates a dilemma. This is so because whoever has the power to discipline or remove judges also has the power to influence them. It follows therefore that the creation of accountability, the very possibility of discipline, necessarily undermines judicial independence.

There are differing approaches to holding judges accountable. However, the emerging consensus seems to be the need to keep discipline away from majoritarian politics. Consensus is emerging that judicial discipline is better kept within the judiciary, and should be carried out by a committee made up, on the main, at least, by judicial officers and members of the independent bar. This is consistent with the provisions of the Universal Charter of the Judge, Beijing Statement of Principles of the Independence of the Judiciary, Council of Europe, European Charter on the Statutes of Judges.

Finding the right balance

Recognising that there is tension between judicial independence and accountability means that it is important to find the right balance. Further, recognizing that both concepts are intended to promote fairness and effective justice means that the right balance shouldn’t be difficult to find. On close reflection these two concepts are mutually reinforcing, the need to act independently regardless of consequences and acting ethically, regardless of whether anyone is watching are fully compatible and reinforcing. Stronger accountability mechanisms can also deter judges from bad behaviour.

Unique Challenges faced by judiciaries in Africa in maintaining their independence

African judiciaries face a host of challenges in maintaining their independence. These challenges include excessive control over judicial appointments, discipline and removal of judges. In most jurisdictions in Africa the bodies charged with selection of judges are dominated by politicians or presidential appointees. This does not only happen in Africa. For example, during the Marcos dictatorship in Philippines, the Supreme Court was criticized as “subservient judiciary” because of the dominance of the executive in selecting judges.

Other challenges include lack of financial autonomy resulting in the judiciary having to beg the executive to fund its activities. In situations where the judiciary has no financial autonomy, it can be manipulated by the executive that controls the purse. Sometimes executives withhold financing the judiciary because it simply doesn’t like its decisions. The are many other problems that plaque the judiciary in maintaining their independence such as lack of resources and operating within weak constitutional frameworks.

Conclusion

Navigating issues of judicial independence and accountability is complex and multi-layered. In navigating this issue, we must always keep in mind that independence and accountability are simply a means to an end, and that the ultimate objective is fair and impartial justice. They are many factors that are critical in achieving fair, and effective justice. The courage of individual judges is also important. The courage to do justice when it is unpopular to do so, and the integrity to resist corruption and remain true to the judicial oath of office cannot be over-emphasized. In other words, the individual judges must exhibit both courage and integrity in their decisions. It is important therefore that the selection of judges should screen judges for these qualities.

Decisions in high profile cases attract intense media scrutiny and public attention, become politicized and viewed through partisan lenses. These leads to perceptions of bias of the court even if decisions are based on sound reasoning. It is therefore important that in all cases, especially the politically sensitive cases, that the court should provide clear, detailed explanations of the legal reasoning. Courts should make oral arguments and court proceedings more accessible. They should also endeavour to write their decisions in simple English without compromising the quality of legal reasoning. It is also important that courts should demonstrate impartiality by avoiding appearances of bias in public statements and conduct, maintain consistency in legal interpretation across cases, enhance ethics and accountability and implement more robust recusal practices.

The independence of judges may also be undermined by misinformation and unwarranted attacks against the judges. It is therefore important for the judiciary to appoint a court spokesperson who can address false narratives and correct misinformation.

*Judge Dingake is a Justice of the National and Supreme Courts of Papua New Guinea and the Residual Special Court of Sierra Leone. This is a speech delivered at a Conference in Nairobi, Kenya, themed “Introspecting and Reflecting on the Supreme Court’s Jurisprudence: 12 years of Defending the Constitution”. The speech was delivered on November 4



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