In every institution, members will use values to attain the mission they have set to perform. In the case of a judge, his “institution” is the Judiciary. Being part of the Judicially, he knows and well versed with these principles. The judge calls for e, thus is to an automatic subscription to them. Acting contrary( which mostly the judge did), was a destruction of the confidence and trust between an employer and their employee. This is gross misconduct, which can even lead to dismissal as enshrined in A 168(1b) of our 2010 Constitution. The question tends to capture its content from the Bangalore principles of the Judiciary. Following these principles, I feel like the supposed judge did not adhere to the standards of ethical conduct expected by a person holding the judge’s office.
To start within the Preamble of the Bangalore Principles is very clear. The principles aim in giving guidance to judges. They also create awareness among judges that they will be accountable for their conduct. This is when they carry their duties in appropriate institutes that have been made to adhere to judicial standards. The judge failed to adhere to these principles in specific measures.
To start with, the judge acted contrary to the principle of “A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom. By helping the suspect with the police reports, he was interfering with the executive branch. This was achieved indirectly through the suspect. She was only the carrier of what the judge would have influenced the police. This is evident in the words of the suspect as quoted” This is what the police have recorded, peruse, add/remove what is necessary and return.” The fact that she expected him to return the report, which she later submitted to the police, means the suspect knew that she could count on the judge’s edition. Thus if the police coordinated and this report is used in a court of law where the judge knows how everything is run, the outcome of the case will be altered. It is unfortunate that this may help the suspect as we have seen that the report was also filled.
Holding the office of a judge, he was expected to promote and exhibit judicial conduct highly to enhance the public confidence in the Judiciary. His actions in this scenario will make the public not expect justice when the suspect is involved. This may paint the whole Judiciary bad, and truth may be sought from other sources such as mob justice. By meeting with a suspect, the public may feel like he believed in her innocence. This will, in return, be viewed as a predetermined verdict when it comes to her proceedings. The judge made the loose public confidence in the Judiciary through his conduct while meeting with the suspect. In my opinion, I feel there would have been better means for the money transactions. This would have hidden the fact that he was facilitating her movements from the public. Conducting their affairs openly in public meant that he did not care what people may feel about his being associated with a murder suspect. For his office’s sake, he should have tried to shun the media to avoid this publicity.
The newspaper indicated that there was no mention of the names of the judge nor the suspect. They cited the sensitivity of the case. The public might interpret this as any ongoing murder case, and either party would have sought anonymity for protection. This shades the Judiciary as one with no integrity. It is with this stand that people may not be reaffirmed of judicial integrity. Justice that ought to be done by the courts did not seem to be done in this case.
I feel that the judge did not adhere to his office’s ethical conduct by not only advising the suspect but also crafting her police’ reports. This by letting his relationship[ influence judicial conduct. Being a member of the Judiciary, his involvement with the suspect makes the observer see the Judiciary as being influenced by individuals. By editing the report, he used the judicial office’s prestige for the advancement of his private interests. This made the public view the suspect as one who holds a unique position, and thus her case will be influenced by her lover.
In your opinion, is the supposed judge in the report,
adhering to the standards of ethical conduct expected of a person holding the
office of a Judge? Explain
On the other hand, I feel the judge was adhering to the ethical standards of his office. Regarding this principle:” A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue”. The article does not indicate that this judge was the one presiding the suspect case. Therefore, his involvement may not influence the outcome of the case as the suspect will not be proceeding in his court. He will also be at liberty to disengage if he is the one allocated to adjudicate to avoid conflict interests.
A judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated with the case.
Secondly, and still in line with the fact that the article did not indicate that he was the sitting judge in her case, I feel he was ethical. He must have adhered to the principle of not participating in determining the case of his spouse. The suspect is his spouse. This is established in the Bangalore principles of spouse definition. She was;” or any other person of either sex in a close personal relationship with the judge.” This is brought out well in how they relate way back to when the judge was a lawyer. It is not any day you will buy shares for a “stranger.” His actions of transferring the shares to the suspect back then depict a close personal relationship.
While sending the message to the suspect, the judge displays affection to the suspect. This is by the emojis of love and kisses. The suspect also refers to the judge in one of the messages as “love.” This shows the intensity of their relationship. This is to mean so long as he does not sit on the bench while the case is proceeding; he was only dealing with his spouse, not the suspect. The public might view her as a murder suspect, but to him, he is his spouse. This means that regardless of the current situation, there is the unlikelihood of cutting their ties.
Question 1 b
The office of judges carries a code of ethics. Whether in office or out there, the judge should try and stick to this code. This adherence will mean that in case charges are brought against them, they can easily defend themselves.
Judges should always ensure that they follow the separation of powers among the three arms of governments. Their actions, while in and out of office, should thus be unbiased.
Being conversant with the Judiciary principles, judges should be ready to step down where they have conflicting interests in ongoing cases.
The public is very observant and judgeful. Judges should, therefore, try and give them the implication that they are trustworthy even when they are not. This is by trying not to expose their vices to the public.
Not very many judges are known to the public while out of the courts. This means that, by shunning the limelight, they may protect their personal lives.
The judge should declare their spouses, especially when they exceed one. This is to mean that in unfortunate circumstances like the one in the article, people will not view them as interfering with justice.
Analyze the role of the Senate as provided in the Constitution of Kenya 2010.
- The Senate represents the counties and serves to protect the interests of the counties and their governments. This is the primary purpose of the Senate. This is to mean that the developments that citizen experience in their counties should come from the Senate. Before the adoption of the 2010 constitution, women were less represented. Currently, we have 47 elected senators and 16 nominated women senators. This number can serve and protect the women who may have been sidelined in the former administration.
- The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113. The Senate legislates on issues such as traffic, roads, and parking at the county level. The laws passed on these undertakings will solely lie in the Senate. Notably, according to Albert Dicey, in his book The Law of the Constitution, 1885, “Parliament has the right to make or unmake any laws whatever; and further, that no person or body is recognized by the law, as having a right to override or set aside the legislation of Parliament. Parliament is not bound by its predecessor.”
- The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments. Currently, Kenyans are experiencing this role. The Senate is trying to settle on the appropriate formula to allocate funds. These funds are the ones to serve their electrolates at the county level. The final vote will determine how and what each county will get. This has led to individual workers such as doctors being paid at the county level. The Senate should ensure that there is the accountability of the funds given to the county governments through oversight.
- The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145. Under this role, the president and their deputy will be obligated to act according to their roles. When a human being operates under oversight, they feel supervised. This means they will be disciplined and may end up being impeached by the Senate. They are thus risking losing their prestigious jobs.
Question 4
evaluate the safeguards of judicial independence under the Constitution of Kenya 2010.
- Judges have been granted unfettered security of tenure, meaning they could only be removed from office upon proof of inability to dispense their functions, misbehavior, or attaining the age of 74. Initially, when there was the need to remove a judge from office, the president could appoint a tribunal to investigate the removal or conduct of that particular judge and suspend the judge from exercising the functions of his/her office pending the decision the tribunal.
- The Judiciary shall be subject only to the Constitution and the law and not the control or direction of any person or authority, Article 160(1). This gives Judiciary independence while running their affairs
- Members of the Judiciary are not allied to any political party. This was evident in the 2007 post-elections anarchy because its Judiciary could not be relied on to mediate on the political crisis, mainly due to its questionable accountability, transparency, and efficiency. However, after adopting the 2010 constitution, the Judiciary has conducted its affairs fairly.
- There has been an Independent Judiciary Service Commission that will be set up to handle the appointment of Judges. They will recommend a list of persons to be appointed as Judges by the president.
- e) The courts’ function is to ensure that all bodies in the government exercise their powers within their limits, which are prescribed by Parliament.
- An excess of power must be curbed, and abuse of power must be remedied, illegal acts must be challenged, and citizens must have redress in court and justice. This is maybe done through injunction, damages among other methods of judicial control.
- The Judiciary enjoys the declaratory theory of judicial interpretation. This is by the fact that the courts never make the law. They merely declare what the law has always been: to say they discover the common law or interpret the intentions of Parliament.
- h) The High court can change the decision of an inferior court and exercise its distinction, but it can, after reviewing the decision referred to the subordinate court for review.
- i) The Judiciary enjoys complaining against the government. This is through their power of declaratory orders. This where the high court which states the legal position of the parties before the court. It may be asked for by a person aggrieved by the decision of an inferior tribunal.
- j) The judicially is also protected when it comes to setting people free. It is good to note that these people have been brought in by the executive. However, using the right of habeas corpus. In section 9 of cap 75 gives the High Court powers in directions on the nature of habeas corpus. The courts can inquire into any unlawful restrictions in their liberty of the subject and, if necessary, order a person be set free.
- BIBLIOGRAPHY
i.) The Constitution of Kenya, 2010
iii.) Introduction to the study of the Law of the Constitution – Albert Dicey