complete eamja 4th annual conference report

8/6/2019 Complete Eamja 4th Annual Conference Report

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REPORT OF THE 4TH ANNUAL CONFERENCE OF THE EAST

AFRICAN MAGISTRATES AND JUDGES ASSOCIATION

INTRODUCTION

The Association was formed in 2001 as a not-for-profit member based

association comprising of three founder associations, namely, Kenya

Magistrates and Judges Association, Uganda Judicial Officers

Association and the Judges and Magistrates Association of Tanzania.

Membership is open to organizational members other than founder

members, and whose objectives and programmes are not inconsistent

with those of EAMJA; associate members, being members of any legal

profession which is not a national organization; individual and honorary

members.

The aims and objectives of the Association are to:

Promote measures that will contribute to the improvement and

efficiency in the administration of justice, adherence to the rule

of law, good governance, and the independence of the Judiciary.

Promote and protect human rights.

Advance education in law within the East African Community

member states.

Enhance knowledge and understanding of judicial functions

through research, dissemination of information, training andexchange programmes.

Advance the science of jurisprudence.

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Promote harmonization of the administration of justice in the

East African Community member countries.

Promote and protect the legal interests, welfare, dignity and

honour of judicial officers in East Africa.

Promote the establishment of close working relations and the

exchange of ideas among members.

Promote the principles and aims of the East African Community,

especially in the legal and judicial aspects thereof.

Cooperate and coordinate with, and where possible, be affiliated

to, other organizations, regional or international, with similar

objectives as those of EAMJA.

EAMJAs vision is that ofan East African Society where governance is

based on the rule of law, and where justice is accessible to all; and its

mission is to promote, enhance and protect the rule of law and

accessibility to justice to all through harmonization of the judicial

systems and development of the capacities of judicial officers in East

Africa.

We at EAMJA encourage those who are not members to enroll as

members through any membership convenient to them. Individual

membership forms are at the back of this report.

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BACKGROUND

The fourth EAMJA Annual Conference was held from 20th 23rd April

2005 at the Sun N Sand Beach Resort, in Mtwapa, Kilifi, Kenya at the

invitation of the Hon. Chief Justice of Kenya, Mr. Justice Evan Gicheru,

Kenya Judiciary and the Kenya Magistrates and Judges Association. We

wish to acknowledge the generosity of the Hon. Chief Justice in

particular, the Kenya Judiciary and the Kenya Magistrates and Judges

Association, in general for hosting the conference and making it a

success.

The Conference, under the general theme of Protecting and Promoting

the Independence of the Judiciary in East Africa, was organized by the

East African Magistrates and Judges Association and was open to all

members of the Association and other interested judicial officers from

the region and beyond. Over 62 delegates including three Chief

Justices of Kenya, Uganda and Tanzania, who are the Patrons of the

Association, attended the conference.

The Conference programme included keynote speeches, presentation

of papers on topical issues by leading judicial officers from the East

African Region and the Commonwealth as well as panel discussions.

Recommendations and proposals were made at the end of the

discussions, the highlights of which include formation of a Council of

Chief Justices of Kenya, Uganda and Tanzania with the mandate to hold

formal and regular meetings with a view to spearheading the

independence of the Judiciaries and other crucial issues; development

of a unified code of conduct for the three Judiciaries and a joint

complaints and disciplinary body; and a proposal to have the

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jurisdiction of the East African Court of Justice enhanced to appellate

and human rights jurisdictions.

During the Conference, the General Assembly of the EAMJA met and

the Associations Executive Council also met. The minutes of the

General Assembly and Council meeting were recorded separately.

The evenings were fun-filled and exciting. Delegates were treated to a

memorable dinner at the enchanting Tamarind dhow, where a seven-

course dinner was served as the dhow cruised around Tudor Creek and

soft music played by the Tamarind live band. On the last day of the

conference, delegates were treated to dinner at the historic Fort Jesus

under a moonlit and star twinkling sky. Kayamba Africa was in

attendance with their inspiring music.

Stella Mutuku

EAMJA Secretary General

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CONFERENCE PROGRAMME

TUESDAY 19 APRIL 2005

Afternoon: Arrival of EAMJA Executive Council Members

WEDNESDAY 20 APRIL 2005

Morning: EAMJA Executive Council Meeting

Afternoon: Arrival of Delegates and Registration

THURSDAY 21 APRIL 2005

8.30am 9.00am Registration

9.00am-10.00am OPENING CEREMONY (MC Justice W. Ouko)

Opening Prayers

Welcome remarks Justice J. Mwera, Vice President, EAMJA

Introduction of delegates

Opening Remarks Justice L. Mchome, President, EAMJA

Group Photograph

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11.00am-11.30am T E A B R E A K

Chair: Hon. Mr. Justice R. Omolo, Justice of Appeal,

Kenya

11.30am 1.00pm Keynote Address by Hon. Mr. Justice Evan

Gicheru, Chief Justice, Kenya

Judicial Administration and the Role of the Chief

Justice by Hon. Mr. Justice Barnabas Samatta, Chief

Justice, Tanzania,

1.00pm 2.30pm L U N C H B R E A K

Chair: Hon. Mr. Justice D. Wangutusi, High Court,

Uganda

2.30pm 3.15pm Plenary

3.15pm 4.00pmJudicial Ethics and the Role of Codes of Conduct in

combating corruption in the Judiciary by Hon. Mr.

Justice J. Mulenga, Judge and Vice President of the

East African Court of Justice.


4.45pm T E A B R E A K

Evening: Chief Justices Dinner at the Tamarind Dhow, Nyali,

Mombasa

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3.10pm 3.50pm The role of Registrars and Court Administrators in the

Regional Integration process by Dr. John E.

Ruhangisa, Registrar, East African Court of Justice.


4.30pm 5.00pm Rapporteurs Report and Conference

Recommendations

5.00pm T E A B R E A K

Evening: Cocktail at the Sun N Sand Beach Resort

SATURDAY 23 APRIL 2005

Morning: EAMJA Annual General Meeting

Evening: Gala Dinner at Fort Jesus, Mombasa.

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OPENING REMARKS

By Hon. Mr. Justice Lawrence B. Mchome,

President, East African Magistrates and Judges Association.

My Lords, Hon. Chief Justices of Kenya, Tanzania and Uganda; My

Lords, the Judges of the Supreme Court of Uganda; My Lords, the

Judges of the Courts of Appeal of Kenya and Tanzania. My Lords, the

Judges of the East African Court of Justice; My Lords, the Judges of the

High Courts of Kenya, Tanzania and Uganda; Honourable Registrars,

Court Administrators, Magistrates, distinguished guests, Ladies and

Gentlemen, is a great honour and privilege to me to get this

opportunity on behalf of East African Magistrates and Judges

Association, to give short welcome remarks. We are very happy this,

this being our 4th Annual General Meeting and Conference, we are back

in Kenya, where our Association was launched four years ago, and in

the same beautiful coastal city of Mombasa, after holding two other

successful Annual General Meetings and Conferences in Uganda and

Tanzania.

I extend special welcome to the East African Court of Justice, which is

attending our conference for the first time as an Associate member,

after being granted that membership only yesterday. I am sure our

Association will benefit a lot from this membership that, for the time

being, includes six distinguished Judges, the Registrar and the Court

Administrator.

We are very grateful to the Hon. Chief Justice of Kenya for hosting this

conference. Without his generous moral and material support, this

conference would never have come to be. Next we thank the Kenyan

Judiciary and its Coastal Region in whose jurisdiction we now are. So

too we thank the host National Magistrates and Judges Association,

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KMJA. Together they have worked tirelessly to make this conference a

success.

Next I beg to extend our most heartfelt gratitude to our other two

Patrons, the Hon. Chief Justices of Tanzania and Uganda. My Lords,

your allowing members of the Association from your countries to come

to attend this conference and the financial support you have given

them are greatly appreciated. Your ongoing support for our

Association my Lords is the greatest source of confidence and

inspiration to us. It shows how highly you value this Association. It

makes us very proud when we see for the first time, since the

Association was launched, our three Chief Justices present amongst us

today. In the previous conferences, for one reason or another, one of

the Chief Justices was missing. It is only the Ugandan Chief Justice who

has managed to attend all the four conferences consecutively. My

Lord, we give you special congratulations for that.

My Lords, these conferences and Annual General Meetings are the

most important events in the annual calendar of our Association. They

make us East African Magistrates and Judges interact and socialize,

while discussing the best ways of administering justice to our people.

This is in conformity with the new people-oriented East African Co-

operation.

Regrettably, we have noticed that the members of delegates,

especially of non-hosting countries, are decreasing year after year.

The main course of this is insufficient financial resources. But joint

efforts ought to be made so that as many delegates as possible take

part in these conferences. I must congratulate here those of our

colleagues who have managed to attend from their own resources.

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My Lords, it is always difficult to start any new project or organization.

They say in Kiswahili, mwanzo ni mugumu. Lack of financial

resources is always the problem. And for those of you who do not

know, begging is not the easiest job in the world. Whether you are

begging from their Lordships the Chief Justices or from donors, it

hardly makes any difference.

Sometimes you can be accused of demanding too much from the

meager resources or budgets. But, as everyone knows, we are not

running this Association for our own personal benefits. It is for the

benefit of all our members and we have no one to resort to, but our

Hon. Chief Justices. But I am happy to say that their Lordships have

been very understanding and able to near with us. That is why they

are all here today. My Lords, it gives me great joy and relief to note

that you have directed each of our countrys Judiciaries to include the

activities of the EAMJA in its Annual Budget. Thank you very much!

This is a clear compliance with Article 129 (1) of the Treaty for the

Establishment of the East African Community, which provides, The

Partner States undertake to c-operate in providing common measures

to ensure the strengthening of linkages among employees and

employers organizations and professional bodies. I understand this

Article to mean that the Partner States undertake to support and

strengthen co-operation among East African employers and

employees organizations and professional associations. And when

these professional associations are of judicial officers, we do not

expect the Legislative or Executive Pillars of our Governments to play

the role of the Partner States. It is the Judiciaries whose duty it is to

play that role.

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On our, my Lords, we are trying our best to reduce the weight of that

load on the shoulders of our Judiciaries. The National Associations are

paying annual subscriptions to the Regional Associations (though at

times they need a lot of pushing to do so on time). We have

introduced individual and associate membership to help increase our

funds. We expect to introduce life membership too. We have also

started to charge a token registration fee from every participant at our

conferences.

As for donors, my Lords, it is not easy for them to start to trust fully a

newly formed association like ours. In this issue the Association is

greatly indebted to its Secretary General, Her Worship Stella Mutuku.

She has almost single handedly contacted several donors from various

parts of the world on behalf of the association. Further and better

particulars of the negotiations going on between the Association and

prospective donors will be given by her in her report at the Annual

General Meeting the day after tomorrow.

The theme of our conference is Protecting and Promoting the

Independence of the Judiciary in East Africa. As indicated in the

programme we have world-class presenters, including of course, our

own Chief Justices. Unfortunately, for reasons beyond our control we

could not get one or two of the expected papers. But I hope those

present are enough to serve the purpose. We are expecting your

active contributions at the discussions so that at the end of the day we

will come up with good recommendations, on among others:

1) Whether a single Code of Conduct for all of East Africa is

desirable and whether we need a disciplinary mechanism to

enforce it.

2) The best planning act of institutionalizing the Independence of

the Judiciary.

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3) How to strengthen the independence of the Judiciary through

Judicial Education.

We are likely to draw up programmes to be jointly run with the donors

based on your recommendations at this conference.

I wish you all the best in these deliberations, thank you.

KEYNOTE ADDRESS

By the Honourable Mr. Justice J.E. Gicheru,

Chief Justice, Kenya.

The Honourable Mr. Justice Barnabas Samatta, the Chief Justice of

Tanzania; the Honourable Mr. Justice Benjamin Odoki, the Chief Justice

of Uganda; the Honourable Judges of the Supreme Court of Uganda

and the Courts of Appeal of Kenya and Tanzania; the Honourable

Judges of the High Courts of Tanzania, Uganda and Kenya; the

magistrates of the three East African Countries; distinguished guests;

ladies and gentlemen, I welcome you all to the City of Mombasa, Kenyafor the 4th Judicial Conference of the East African Magistrates and

Judges Association. The Kenya Judiciary is proud to host this eminent

assembly of the Honourable Chief Justices of the East African Countries

together with the respective judges and magistrates of their courts.

The East African Magistrates and Judges Association is a co-operative

effort of the judicial officers in East African to address matters of

mutual concern and interest for the effective administration of justice

in the region. The spirit of the East African Community prescribes

nothing less and the Kenya Judiciary is happy to be able to facilitate

the pursuit and eventual achievement of the noble Community goals.

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Indeed, Article 5 of the Treaty for the Establishment of East

African Community (the Treaty), which entered into force on 7th

July 2000, lays down the objectives of the Community as being to

develop policies and programmes aimed at widening and deepening

co-operation among the partner states in political, economic, social

and cultural fields, research and technology, defense, security and

legal and judicial affairs, for their mutual benefit.

The conference theme of Protecting and Promoting the

Independence of the Judiciary in East Africa is apt and timely.

Article 126 of the Treaty promulgates the scope of co-operation with

respect to legal and judicial affairs to include the standardization of the

judgements of the courts within the Community. The achievement of

this goal is impossible if there are disparities in the independence of

the respective Judiciaries. It is therefore, proper and fitting that the

member States of the Community should concertedly seek solutions to

the problems of the lack of independence facing each State Judiciary.

The rebirth of the East African Community after its collapse in 1977

must engender co-operation in the member countries and their judicial

institutions. The situation is made urgent by the recent launch of

cross-border legal practice for the members of the legal profession,

which requires congruent levels of independence of the judiciary in

East African States.

The integral role of an independent judiciary in the socio-economic and

political development of the East African countries, particularly in this

era of transition to democratic good governance, cannot be over-

emphasized. An independent judiciary has also the specific output of

the effective administration of justice, which is a noble aspiration of

any just society. It behoves us then to explore ways and means for

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protecting and promoting the independence of the judiciary in East

Africa.

The threat to the independence of the judiciary is manifested in

several known ways and there will be others as we continuously seek

to assert and entrench our independence and autonomy. Just like the

categories of negligence, the aspects of interference with the

independence of the judiciary are never closed. The acts of

interference can be blatant and overt or indirect and subtle.

The most blatant and conspicuous threat to the independence of the

judiciary entails the interference with the security of tenure of judges.

The Kenya Judiciary suffered a total removal of security of tenure of its

judges when by a constitutional amendment on 11th August 1988 the

provisions of the Constitution on security of tenure were repealed.

These protective provisions on security of tenure for judges were

restored over two years later on 31st December 1990 at the onset of

the multi-party system of government.

There have been other instances of interference and lack of

independence in Kenya taking the form of:

1) Express instructions to judges and magistrates from State House

during the past regime as to how to dispose of case before the

courts. In one dramatic case, Justice Derek Schofield (presently

the Chief Justice of Gibraltar) resigned and left Kenya in 1987 in

the aftermath of his refusal to do the bidding of the former

President communicated through the then Chief Justice in a case

involving the liberty of a citizen on a habeas corpus application.

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2) Interference with the housing arrangements of judicial officers as

where senior magistrates were in 1996 forcibly evicted fro m

government houses allocated to the judiciary and replaced with

civil servants from executive branch of the government.

3) Control of the Judiciary budget through cumbersome, and at

times punitive, financial regulations and meager funding.

4) Subjecting the Judiciary programmes to dilatory scrutiny by the

Executive especially in construction of court facilities and

procurement of equipment and services for the Judiciary.

5) Control by the Executive of the remuneration, terms and

conditions of service for the magistrates and the administrative

support staff, and

6) Corruption through bribery by litigants and other means, which

has seriously undermined the impartiality and independence of

judgement of our judicial officers. In response to this threat, the

Kenya Judiciary has fully institutionalized an anti-corruption

mechanism in the form of a standing committee on Ethics and

Governance (formerly known as Integrity and Anti-corruption

Committee) with biennial reviews of the integrity of the

processes and personnel of the Judiciary.

The views of this Conference on the issue of the corruption and related

integrity matters may be considered by the Ethics and Governance

Committee whose chairman and secretary are officials of the East

African Magistrates and Judges Association.

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Other instances of intermeddling and interference with the judicial

independence in Kenya have been subtle and indirect. These include

disobedience of court orders by members of the Executive branch of

government; breach of the sub-judice rule by members of parliament

and the Executive; and the purported directions by both to the courts

to deal with matters pending before them to a certain outcome. It has

also been argued that the appointment of judges to chair or participate

in Judicial Commission of Inquiry interferes with the independence of

the judiciary, particularly in cases of judicial review applications to

quash the Inquiry proceedings, or when the Executive and the

Legislature trash the Inquiry reports.

Similarly, it is also arguable whether the appointment of judges in

acting capacity for long periods prior to confirmation or revocation of

their appointments is an unconstitutional interference with the judicial

independence.

In spite of protective constitutional provisions on security of tenure,

there are judges and magistrates who are unable or unwilling to assert

their independence and who, in the words of Lord Atkin in Liversidge

v. Anderson (1942) A.C 206 show themselves more executive

minded than the Executive. It is especially for these judges and

magistrates that Article 1 of the Bangalore Principles of Judicial

Conduct prescribes as follows

Judicial independence is a pre-requisite to the rule of law

and a fundamental guarantee of a fair trial. A judge shall

therefore uphold and exemplify judicial independence in

both its individual institutional aspects.

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All of us should jealously guard our independence against interference

and intermeddling from individuals and institutions, both within and

outside the Judiciary.

This conference should deliberate on all the various aspects of

interference and lack of independence and formulate suitable redress

mechanisms for general application in the East African Countries. I

would urge you to think out of the box, as it were, and consider novel

measures for the entrenchment and maintenance of the independence

of the judiciary its staff, operations and processes for effective

execution of its social, economic and political mandate in our

respective States singularly and in the East African Community as a

whole. The challenge before us is to institutionalize judicial

independence and at the same time nurture and maintain the

necessary harmonious relationship with the other branches of the

government.

Apart from the legislative interventions to create physical separation

and autonomy of the judiciary from the other branches of the

government, there is the underlying qualitative philosophy of the

doctrine of the Separation of Powers that any interference by one with

the operations of the other branches is unconstitutional. Accordingly,

an act of interference or a law that permits interference with the

effective operations of the Judiciary through among others, budgetary,

funding and procurement systems of the Executive are

unconstitutional, null and void. Is may appear then that the answer to

our problems of lack of independence in this regard is right at hand.

I do express a concluded view of the matter; but I sow this seed of the

unconstitutionality principle at this conference to spur debate on its

applicability in the scheme of remedies that you will no doubt fashion

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in answer to the challenges of lack of judicial independence in the

region.

I also urge you to consider whether greater independence would be

achieved and guaranteed by extending the constitutional security of

tenure to the magistrates; by an intermediate system of penalties and

disciplinary mechanism, other than removal or dismissal of a judicial

officer, for breach of discipline and accountability before the Judicial

Service Commission and constitutional tribunals are seized of the

matter; and by formulating a code of practical guidelines for

magistrates and judges in asserting independence in the daily

performance of their judicial duties.

On behalf of the Kenya Judiciary, I would like to assure you that we

shall conscientiously implement the action plan and principles of

judicial independence that will emerge from the deliberations of this

conference. I take the view that the fight for judicial independence,

though one for each member of the Judiciary at their respective

stations, is also one which must be led by the Chief Justice from the

frontline. In that regard, I urge the conference to consider whether a

case exists for the establishment of Council of Honourable Chief

Justices of the East African Community States, to consider and oversee

the implementation of the recommendations of the conference. The

Council of Chief Justices will help reconcile the standards of judicial

independence in the East African countries to their mutual benefit and

the overall administration of justice in the region. As it has rightly

been said coming together is a beginning; keeping together is

progress; and working together is success.

This conference and others to come will symbolize our togetherness in

the pursuit of effective and independent judicial systems in East Africa.

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The organizers of this Conference have done a splendid job and I thank

them. I also thank the Honourable Chief Justices of Tanzania and

Uganda for gracing this occasion; the Honourable judges and

magistrates invited to the conference for their anticipated

participation; and the administrative staff of the Kenya Judiciary for

their support services.

It is now my great pleasure to declare the 4th East African Magistrates

and Judges Association Conference officially opened and wish you all

fruitful deliberations.

God bless us all.

Thank you.

JUDICIAL ADMINISTRATION AND THE ROLE OF THE CHIEF

JUSTICE

By Hon. Mr. Justice Barnabas A. Samatta,

Chief Justice, Tanzania.

Introduction

I wish at the outset to sincerely express my thanks to the President of

the East African Magistrates and Judges Association and the

Associations local organizing committee for the kind invitation

extended to me to present this paper and participate in this

Conference. I feel very honoured to address this distinguishedaudience of judicial officers from our region.

In this paper a brief analysis of what entails judicial administration

entails will be made. The general and statutory roles of the chief

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justice will be highlighted. The paper will also examine some of the

factors that make the role of the chief justice in judicial administration

unenviable. It will focus on the East African Region.

Judicial Administration

Judicial administration consists of the practices, procedures and offices

that deal with the management of the system of courts. It is

concerned with, among other things, overseeing budgets, assignments

of cases, creating court calendars of activities, supervising non-judicial

personnel and providing litigants easy access to courts.

In order to have a better understanding of the purpose of judicial

administration and the role of the chief justice, it is necessary, I think,

to discuss, albeit very briefly, the role of courts. Courts are primarily

charged with fair and effective administration of justice in accordance

with the doctrine of separations of powers. They are required to serve

an indispensable role of protection of fundamental human rights. They

are required, therefore, to meet very high standards of independence,

courage, impartiality, integrity and propriety, as well as competence

and diligence. They are state organs, which must resolutely stand

between the individual and oppression. As Tocqueville puts it:

The great object of justice is to substitute the idea of right

for that of violence, to put intermediaries between the

government and the use of its physical force.1

Courts are supposed to offer a forum where the poor and the

powerless can stand with all others as equals before the law. Today,

however, as commented in many jurisdictions in the world, an

1 Quoted in a speech by Attorney General of the United States, Edwin Meese II before the American Bar

Association, July 9, 1985, Washingtion DC, found athttp://www.politics.pornona/edu/labmeese html

visited on 10/3/2005

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increasing number of persons regard courts as overtly and subtly

biased against the poor. The less fortunate in society, with increasing

frequency, choose to avoid the legal system altogether rather than

face intimidation, delay, and escalating legal and emotional costs.2

It is evident from the above discussion that those manning the

judiciary must constantly remember that the ultimate goal of judicial

administration is to enable those entrusted with the task of

administering justice to discharge their functions independently,

impartially, promptly and effectively.

The Role of the Chief Justice in Judicial Administration

The role of the chief justice in judicial administration in a Common Law

jurisdiction is much greater than in a Roman law jurisdiction. In the

latter jurisdiction, judicial administration is substantially shared with

the ministry responsible for legal affairs, this is not, however, to say

that there are no differences in the roles of chief justices in Common

Law jurisdictions. Constitutional and other relevant statutory

provisions, and cultural, social and economic factors are sources of

some differences.

To some people the Chief Justice must set out to strengthen the court

as an institution. Thus the Chief Justice must be the moderator, not

the master, of the court.3 Yet to others the trick to understand the

Chief Justices role in shaping a court has to do with the myriad subtle

ways in which any savvy administrator can effect vast policy changes.

In the United States, for example, one of the most important powers of

2 See comment by Marion Edwiyn Harrison, Esq.- The Chief Justices Annual Report The Topsiders

Empirical View of the Federal Judiciary, February 17, 2005 found at

http://www.freecongress.org/commentaries/2005/050127.asp. visited on 10/3/20053 See Charles F. Bobson in The Great Chief Justice: John Marshall and the Rule of Law, in The

Independence Review Volume 2 Number 3, Winter 1998, found athttp://www.independent.orgvisited on

14/3/2005

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the Chief Justice is the assignment of written opinions whenever he

votes with the majority in a case.4 Commenting further on the powers

of the Chief Justice of that country, Dahlia Lithwick writes:

The formal powers of the Chief Justice dont sound all that

enticing: He or she is essentially like a glorified Alice on the

Brady Bunch-getting to do all administrative grant work with

which no one else would possibly want to be bothered. Hes

the administrator of the court and manager of the court

building. He serves on tedious collectives such as the

judicial conference an entity described as the board of

directors for the federal judiciary. On top of all that, he has

to act as hurried class secretary recording all the goings

on at case conferences, tracking who voted for what, and

how dozens of opinion will be disposed.5

It is submitted that the role of the chief justice is a challenging one and

that there can be no effective judicial administration without a strong,

independent and competent chief justice.

The General Functions of the Chief Justice

Before I describe the statutory functions of the chief justice, I wish to

turn to his general functions. As everyone close to the office of the

chief justice will readily admit, these are numerous. They include:

a) Consulting with his learned brothers and sisters with a view to,

among other things, taping the abundant knowledge, experience

and wisdom available in the judiciary.

4 See the paper by Dahlia Lithwick on Talk about your Overrated Job Why would anybody want to be

Chief Justice, found at http://www.washingtonpost.Newsweekinteractive.com/ posted Tuesday Nov. 16,

20045 Ibid (endnote 4)

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b) Designing mechanism for strengthening the independence of the

Judiciary, and skillfully and energetically defending and

protecting that independence and that of individual judges and

magistrates. The chief justice must, whenever possible, pre-

empt unconstitutional and illegal acts of the Executive that have

a bearing on the independence of the judiciary.

c) Identifying needs of the Judiciary.

d) Supervising the internal operations of the courts.

e) Analyzing and planning for the future development of the

Judiciary.

f) Laying down administrative policies and procedures to improve

judicial administration at all levels of the judiciary through

circulars and directives.

g) Ensuring easy access to justice by making the system open,

affordable and understandable to all users.

h) Ensuring that in the handling of cases, judges and magistrates

assume responsibility for active management of cases from

assignment to disposition.

i) Ensuring efficiency through planning and sharing of resources

allocated to the judiciary.

j) In the current era of information technology, ensuring expanded

and innovative use of technology to improve and expedite the

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work of the courts, including making justice more consumer-

oriented by integrating and upgrading the technologies.

k) Liaising with the President of the country, the Minister

responsible for legal affairs and the Attorney General about

matters affecting the administration of justice.

l) Representing the Judiciary at appropriate official functions both

within and outside the country.

m)Ensuring that complaints against judicial misconduct and

mismanagement of cases are handled properly and promptly.

n) Ensuring citizens understanding of, and confidence in, the

judiciary. The chief justice is expected to use the prestige

associated with his office to enhance the peoples respect for the

institution.

o) Encouraging flow of ideas on the improvement of cases

disposition, in particular, and the rest of the judicial business, in

general.

p) Ensuring high degree of co-operation between the Judiciary and

other state organs involved in the administration of justice.

q) Encouraging increased consultations between the Judiciary and

the Bar.

r) Providing leadership in modernization of the components of the

Judiciary and reform of the law touching on the administration of

justice.

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s) Counseling those judicial officers who appear to be weak in

integrity.

t) Ensuring that judicial officers do not receive favours from the

Executive pillar of the State.

u) Supervising the general development of manpower capacity in

the Judiciary.

v) Exhorting individuals and relevant organizations to maintain

momentum of change.

w) Making a judicial code of conduct more available to, and known

by the public.

x) Ensuring that the system in place for continuing judicial

education is producing the required results.

y) Taking measures geared at ensuring that judicial officers and the

judiciarys members of supporting staff are sufficiently

remunerated and motivated in other ways.

z) Ensuring that courts are always depoliticized.

STATUTORY FUNCTIONS OF THE CHIEF JUSTICE

Tanzania

The statutory powers of the Chief Justice, who is the head of the

Judiciary, in judicial administration in Tanzania, are provided for under

the Constitution of the United Republic of Tanzania, 1977, the Judicial

Service Act, the Appellate Jurisdiction Act and some other laws.

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The Chief Justice is empowered under Article 109 (5) of the

Constitution to give to the Principal Judge (JK), who is his special

assistant in the administration of the High Court and the courts

subordinate to it, directions or instructions from time to time

concerning the discharged of his duties and functions as head of the

High Court. The Chief Justice under the same provision is empowered

to delegate to the JK some of his administrative and supervisory

powers in relation to the High Court and courts subordinate to it.

However, whenever necessary, the Chief Justice may himself discharge

directly any of the functions so delegated to the JK.

Other functions of the Chief Justice under the Constitution include

chairing the Judicial Service Commissions meetings (article 112 (1));

advising the President on the need to appoint acting judges of the High

Court; consulting from time to time with the Chief Justice of Zanzibar

concerning the administration of the business of Court of Appeal in

general an also concerning the appointment of Justices of Appeal

(Article 116 (3)); and advising the President on the appointment of

Justices of Appeal and Acting Justices of Appeal (Article 118 (3) and (5)

respectively).

Functions of the Chief Justice of Tanzania under the Judicial Service Act

and other laws include:

a) To administer the Act, (section 25 (10)

b) To appoint certain judicial officers like Deputy Registrars and

Magistrates in-charge.

c) To direct the Judge in-charge to suspend a magistrate pending

disciplinary investigation or proceedings for dismissal.

d) To suspend a judicial officer if convicted of a criminal offence or

to interdict him pending disciplinary proceedings.

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e) To make or amend rules of courts with respect to the practice

and procedure.

f) To preside at the sitting of the Court of Appeal.

g) To supervise judges by scheduling of duties and to assign cases

to Justices of Appeal.

h) To issue admission certificates to advocates and to oversee

compliance with rules governing professional conduct.

i) To approve the High Court of Tanzania annual criminal calendar

sessions under the Criminal Procedure Act 1985.

j) To assign counsel in serious criminal cases and to litigants with

no means to pay fees.

Uganda

The role of the Chief Justice in Uganda is more or less the same as that

of the Chief Justice of Tanzania. Under Article 131 (3) of the Ugandan

Constitution, 1995, the Chief Justice is supposed to preside at each

sitting of the Supreme Court unless he is absent, in which case a senior

member of the Court shall preside.

As for administrative functions of the Chief Justice, Article 133 (1) of

the Ugandan Constitution provides:

(1) The Chief Justice

(a)Shall be the head of the judiciary and shall be responsible for the

administration and supervision of all courts in Uganda, and

(b)May issue orders or directions to the courts necessary for the

proper and efficient administration of justice.

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It should be pointed out that, in accordance with the provisions of

Article 146, the chairmanship of the Judicial Service Commission in

Uganda does not fall under the Chief Justice. The Commission is

required to be under the chairmanship of a person qualified to be

appointed as justice of the Supreme Court, other than the Chief Justice,

Deputy Chief Justice and the Principal Judge. The Chief Justice

exercises powers under the Judicature Act similar to some of those by

the Chief Justice of Tanzania.

Kenya

The Constitution of Kenya and the Judicial Service Commission

Regulations (the Regulations) specify several functions of the Chief

Justice, who is the head of the Judiciary. The functions under the

Constitution include directing the place of sitting of the High Court

(Article 60 (5)); advising the President on filling in the vacancy of a

puisne judge in which the state of business requires that step be taken

(Article 61 (5)); advising the President on the need for investigation

into the question of removing a judge (Article 62 (5)); advising the

President on the suspension of the judge when the question of

investigation for removal has been referred to the tribunal (Article 62

(6)); and making rules with respect to the practice and procedure of

the High Court in relation to jurisdiction and powers conferred on it by

the Constitution (Article 65 (3)). The Chief Justice is also the chairman

of the Judicial Service Commission (Article 68 (1) (a)).

The functions of the Chief Justice under the Regulations include

interdicting any officer having a title mentioned in Article 69 of the

Constitution (R.17); suspending an officer convicted by a court of a

serious criminal offence (R.18); and administering a severe reprimand

or a reprimand to an officer guilty of disciplinary misconduct. In

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authority than judicial officers treating the two as meaning the same

thing. Judges and magistrates should always remember the celebrated

observation of Thurgood Marshall:

We must never forget that the only real source of power

that we as judges can tap is the respect of the people.6

Judicial officers who turn courts into centers for sale of justice or who

abuse their authority in other ways should expect nothing short of

wrath of the chief justice and the law. To use the words of the former

Chief Justice of the Supreme Court of California Rose E. Bird, if.

courts lose their authority and their rulings are no longer

respected, there will be no one left to resolve the divisive

issues that can rip the social fabric apartThe courts are a

safety valve without which no democratic society can survive.

Chief Justices have a duty to act decisively, but in accordance with law,

against all those in their judiciaries who, by their acts or omissions,

tarnish the judicial image.

Some of the Challenges the Chief Justice faces in JudicialAdministration

It is submitted that there can be no meaningful administration of

justice without a strong, fair, independent and well-equipped judiciary.

This kind of judiciary will certainly lead to the success of the Chief

Justice in performing his duties.

The Judiciarys independence must be real. As former Chief Justice of

Canada, Mr. Justice Dickson, once said,

The Role of the courts as resolver of disputes, interpreter of

the law and defender of the constitution requires that they

6 See The Quotable Lawyer, Revised Edition, p.167.

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be completely separate in authority and function from all

other participants in the judicial system.

In my opinion, the following are some of the factors that threaten the

independence of the Judiciary and make the administrative duties of

the chief justice more onerous:

Poor allocation of resources

Unfortunately, the government of many developing countries do not

have abundant resources and do not always appreciate the importance

of giving priority to judicial activities. When resources are too limited,

the independence of the judiciary is threatened. That independence

must therefore extent to matters appertaining to budget. Article 155

(2) and (3) of the Constitution of Uganda is in this respect a welcome

innovation. The two provisions read as follows:

(2) The head of any self accounting department,

commission or organization set up under this Constitution

shall cause to be submitted to the President at least twomonths before the end of each financial year estimates of

administrative and development expenditure and estimates

of revenues of the respective department, commission or

organization for the following year.

(3) The estimates prepared under clause (2) of this article

shall be laid before Parliament by the President under

clause (1) of this article without revision but with any

recommendations that the Government may have on them.

Sub-article (6) of Article 128 of the Constitution declares the judiciary

to be a self-accounting department. It is understood from the Ugandan

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sources, however, that the impact of these provisions on availability of

funds to the Judiciary has not been much.

In a paper delivered at the Latimer House Conference, a former Chief

Justice of Zimbabwe, Mr. Justice Anthony Gubby, pointed out that

through the executive control of funds the executive can twist the arm

of the Judiciary if it does not behave to its liking. He went on to say:

There is a need for budgetary independence: that is the

ability of the judiciary to have control over its own funds and

apply these funds in accordance with its own priority as a

better administration of justice.7

I hope I will be forgiven for stating the obvious, namely, budgetary

constraints are likely to make many of the Chief Justices functions

much more difficult.

Increased misconduct and unethical behaviour among judges and magistrates

Criticism against judges and magistrates for misconduct and unethical

behaviour has increased in recent years in many jurisdictions. This

makes the role of the Chief Justice more challenging than ever before.

The problem of judicial corruption

It is submitted that the worst form of corruption in public life is judicial

corruption since the courts are the ultimate forum for condemning and

punishing all other forms of corruption. There can be no doubt that

judicial corruption seriously erodes the moral authority of the courts.

7 Quoted in Address by the Hon. Chief Justice of Trinidad & Tobago Michael De La Bastide, found at

http://www.ttlawcourts.org/Cjaddr. Visited on 10/3/2005

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As professor C.G. Weeramantry, a former Vice President of the

International Court of Justice, correctly points out in his book, The Law

in Crisis, at page 24:

Nothing can be more dangerous to a legal system than lack

of confidence in its devotion to justice.

Rampant judicial corruption severely weakens the ability of the Chief

Justice to concentrate on ordinary judicial administration. The evil of

corruption should therefore be fought against, applying all legal and

moral force. However, such task should be undertaken without

infringing upon judicial independence, or intimidating or unfairly

accusing judges and magistrates who are innocent of wrongdoing. The

reputation of a judge is crucial to public confidence in his/her ability to

judge independently, fairly and impartially.

Shortage of judicial officers and support staff

It is noted that in most jurisdictions shortage of judicial officers and

support staff adversely affect the realization of the chief justices goals

in judicial administration. In Tanzania there is a shortage of about 440

Primary Court magistrates. This makes distribution of magistrates in

1105 courts a very difficult task.

Conclusion

If this paper generates a lively discussion of the points raised therein, it

will have served the principal purpose for which it has been prepared.

One of the major points that emerge from it is, I believe, that the chief

justice has a very difficult and unenviable role to play in judicial

administration. Those who aspire to become chief justice should be

under no illusion as to the weight of the load their shoulders will carry

should their ambitions be realized. The sea on which the chief justice

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sails sometimes becomes very rough, indeed. Be that as it may,

judicial administration must strive to move with the times; courts

cannottime stand still. Those working in judiciaries must recognize

that the surest guarantee for judicial independence is accountability.

JUDICIAL EDUCATION AND ITS ROLE IN ENHANCING

EFFICIENCY AND EFFECTIVENESS IN THE

ADMINISTRATION OF JUSTICE; GETTING THE

BALANCE RIGHT

By His Honour Judge Keith Hollis,

Director of Studies, Commonwealth Magistrates & Judges Association,

Circuit Judge, England & Wales.

Introduction

It is a matter of surprise to me that judicial training should still in some

quarters be regarded as somewhat controversial. In the UK we have

now had about 20 years of established judicial education through the

auspices of the Judicial Studies Board, an organization run by and for

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In other countries, such as those of east Africa, there will be junior

judicial officers with the need to build on what may be quite limited

basic training. So we share in common a need for lectures on what I

call black letter law, on new laws as they are introduced and

refreshers on developments in the law generally (which may well

include developments from other common law jurisdictions and in

international law). We can and should involve in this our academic

colleagues. Their efforts in the UK are always appreciated. They have a

great deal to add, especially in the development of the common law, in

drawing our attention to flaws & inconsistencies in judicial reasoning

and in helping our own intellectual juices to flow when preparing our

judgements.

Promotion of judicial collegiality:

The advantages of this cannot in my view be overstated. Judicial

education brings the opportunity of gatherings such as these, where

judicial officers of all ranks and backgrounds can discuss the law and

the problems we share. Without judicial education such opportunities,

especially in larger jurisdictions, would be few and unstructured. Such

meetings enable us to hear how others approach the job we are all

honoured & trusted to do, to think about and re-evaluate our own

approach. Collegiality boosts our sense of judicial independence and

reduces the isolation that we can all experience from time to time.

Encourages consistency:

It helps develop a degree of consistency in the application of the law:

this is especially important when the training may be in procedural

matters, or where politicians, ducking the nuts and bolts of their

policies, pass legislation that relies too greatly on judicial discretion.

Social context:

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Finally, judicial education offers an opportunity to introduce an

element of context in our work; firstly to hear from people whose

background and ways of life may be different from that which we have

knowledge of, secondly to bring in experts from other fields to give

their views on their work and how it relates with ours. We can bring in

new ideas and debate them.

In short the argument for judicial education is that it brings about a

better-informed judiciary of a more consistent quality, and more

sensitive to the social milieu of those they are judging.

The cons:

Jeopardize judicial independence:

The great argument against judicial education was that it would

undermine judicial independence, that training as such was bound to

be subjective, adopting a line. (Which is why in the UK it has always

been referred to by using the euphemism of judicial studies).

Training could undermine that independence of thought and of

approach, which has allowed the common law to develop so fruitfully in

so many different circumstances.

Increase control:

It could be used by the executive to exert pressure on the judges as a

way of controlling them, including through funding and other

pressures.

Threat to judicial selection:

It would discourage rigorous selection procedures for judicial officers

encouraging an attitude that any shortcomings could always be

overcome by being trained, and if that doesnt happen then it could be

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said to be the fault of the training (and therefore of the judges who do

the training) rather than of the judicial selectors.

Cost in time and money:

That judges should know the law anyway, that it is an expensive

luxury, not only in the direct financial cost, but also in that it takes

judicial officers away from courts, causing delays. The accused

languish in prison longer, witnesses have more time to forget what had

happened; in short it would be another factor contributing to the great

problems of all judicial systems.

How does this apply today?

The value of talks on black letter law cannot be underestimated. As

long as the programmes are arranged by and kept under the control of

the judiciary then any threat to our independence is illusory. Some of

the more rugged spirits amongst us may have a few rough edges

rubbed off and may see that as an interference with their

independence, but they probably have a misconception of the nature

of that independence anyway.

Chief Justice Odoki in a paper he gave earlier this month to the Pan

African Forum on the Latimer House Principles rightly said that the

importance of judicial training cannot be overemphasized and he

referred not just to training but to retraining, which he added was

crucial in imparting knowledge on new developments in the law and

administration of justice and in promoting attitudinal changes and law

reform. I was pleased to read him mention attitudinal changes, which

I take to be support for the context training I have already referred

to.

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Similarly the value of meetings such as these in the promotion of

collegiality, especially in the promotion of ethical conduct, should not

be underestimated. The Limassol Conclusions on tackling corruption

amongst judicial officers identified the promotion and development of

collegiality as a central way of underpinning high ethical standards

amongst judicial officers.

Judicial training does cost money, but it is money well spent. It can

take time too, but any cost accountant worth his salt should be able to

counter this argument (if indeed such is necessary, which I doubt) with

demonstrating the savings that can be made as a result of having a

properly trained judiciary.

But there are problems, which we mustnt overlook. It can lead to

complacency on all sides. The attitude of, such and such issue has

been covered by a course for the judges and magistrates so that box

can be ticked. There is a risk that we can take our training and our

lecture notes and blindly follow them without carrying out the essential

exercise of analyzing the law for ourselves and applying the law to the

facts before us in court in such a way as to ensure that justice is done.

It can lead to casualness in the making of judicial appointments, an

area that those responsible for should be more aware of than I believe

they often are.

The main area of concern I have is in the undermining of a judicial

officers self confidence that can be the result of some forms of judicial

training. I believe that this is a significant problem in the UK,

especially for our junior judges, and I am sure could be the same

elsewhere. I remember drawing great comfort from listening to our

own LCJ, Lord Woolf, when he spoke at our last triennial conference in

Malawi two years ago. He spoke of those cases where one listens to

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advocates addressing the court for a considerable time, tries to

concentrate hard but still hasnt the faintest notion of what they are

talking about. Is it you who is missing something crucial or is it them? I

am sure that this is something that we have all experienced to a

greater or lesser degree from time to time. The confident judicial

officer will of course ensure that by the end of the case he or she fully

understands the arguments, the less confident may say nothing on the

basis that it is better to keep ones mouth shut than run the risk of

being thought a fool by some judicial intervention. I think that there

are occasions when judicial training, often given by those of us who are

more confident (justifiably or not) in our views and approach,

contributes to this problem. There can be hesitation and uncertainty,

where there should be clarity and decisiveness. It can make matters

appear to be more complicated than they need be, and at bottom we

are paid to make decisions, not to prevaricate.

Codes of conduct.

So where does this lead us on the question of codes of conduct for

judicial officers? The CMJA has been in the forefront of promoting the

adoption of such codes. As a sponsoring partner of the Latimer House

Guidelines on Judicial Independence and Parliamentary Sovereignty

(now referred to as the Latimer House Principles), which were adopted

by the CHOGM in Abuja in 2003 and debated at the pan- African

meeting earlier this month, the CMJA was particularly involved with

that section of the Guidelines that deals with codes of conduct. The

adoption of a code by the judiciary of England & Wales was partly a

result of the UK governments own commitment to the Latimer House

Principles. The CMJA keeps a library of such codes from throughout the

Commonwealth (and indeed from elsewhere) at our headquarters in

London, and codes of conduct form a central feature in our

programmes.

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I remain somewhat agnostic on the value of codes: there is a risk that

they complicate matters by reducing to writing, at one time, something

that is really organic, and which is better, and more simply, expressed

by our judicial oaths.

The existence of a fixed code of judicial conduct, which is handed down

from generation to generation, perhaps with limited debate or

consideration as to its application has its risks.

There is a risk that the code is just taken down from the shelf and

dusted from time to time, but not really thought about. In talking

therefore of codes I have always preferred to talk of having a code

procedure that ensures that each new judicial generation determines

rules of judicial conduct for themselves, subject to the time and place

in which the exercise is being carried out, and that any applicable code

is constantly considered, debated, and, where necessary, revised, so

that it is in the forefront of the minds of judicial officers, and so that it

adapts to changing circumstances.

Most of us do not need the assistance of a written code of ethical

behaviour to govern our everyday lives. We adopt and develop our

own codes from our own experiences and observations and from our

relationships with friends, family and colleagues. The code which we

live by is largely unwritten, it would be hard, perhaps impossible, to

reduce it to writing. We know when we have breached that code, or

when others with whom we have dealings do so. The code we live by

will change, sometimes for the better sometimes for the worse, as we

get older and our experiences change. It is organic. It is the same in

the professional life of a judicial officer. Circumstances need to exist

which enable each judicial officer to be fully alive to the ethical issues

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which govern his or her behaviour both on and off the bench and to be

aware of those occasions when he or she, or a judicial colleague, fails

to meet those standards. In short to aid vigilance and overcome

complacency.

How can this view be squared with the admirable aim of the EAMJA to

have a common code for your three jurisdictions? To start with you do

of course each have a code, that of Kenya being one quite recently

adopted (I believe in 2002). The codes themselves have many

similarities, but the value if I may put it like this of sharing our judicial

DNA should not be underestimated, whilst always being aware and

respectful of our differences.

In a keynote address which he delivered at a seminar in Uganda in

2/96 the former Chief Justice of Tanzania, The Hon. Chief Justice

Francis Nyalali, referred to four principles which underlay the rules of

judicial conduct:

1. The independence of the judiciary

2. The impartiality of adjudication

3. Fairness of trial and

4. The integrity of the adjudicator.

These points were adopted and analyzed by the present President of

the CMJA, Lord Hope of Craighead, in a keynote address he gave to our

Triennial in Edinburgh in 2000, Lord Hope observed that the principles

are now so well established world wide that there is hardly any country

that can justifiably be proud of its justice system unless it recognizes

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and practices these four principles. It is a matter of deeds though, as

well as words and there is a need to constantly revisit the principles

(and thus any codes which apply them) to remind ourselves of them

and to assess how they are being applied in practice in what we do.

I would like briefly to focus on the links between these four principles,

and especially between independence, integrity and impartiality.

At that Edinburgh Triennial we also heard a most stimulating paper

from the Hon. Justice Dr. George Kanyeihamba of the Supreme Court of

Uganda. I recall that he referred to institutional independence, which

was not something that judges could create for themselves. As he said,

it was to be found in the minds and behaviour of the people and in the

respect which the government of the country gives to the judiciary,

adding that judicial independence depends on the systems which have

been created for us by the constitutions under which we work, or by

our legislatures or, acting under the authority of the constitution or the

legislature, by the executive.

That respect, the respect that government & the people give to the

judiciary, has to be earned and deserved, and clearly the existence of

a code of conduct that judicial officers observe and think about, is a

way of demonstrating our concern for our own integrity to the other

arms of government and to the wider public.

Integrity (like impartiality - another face of the same diamond) is an

essential requirement for the job, which we are called upon to do and it

is up to us to see that we, and those whom we work with, act with

integrity and impartiality. As George Kanyeihamba so well put it,

integrity comes from within mans very soul.

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JUDICIAL ETHICS AND THE ROLE OF CODES OF

CONDUCT IN COMBATING CORRUPTION IN THE

JUDICIARY.

By Hon. Mr. Justice J.N. Mulenga,

JSC (Uganda) and Vice President, East African Court of Justice.

Introduction

The topic of this paper co-relates well with the theme of the

conference. The primary step towards Protecting and Promoting

Independence of the Judiciary in East Africa as elsewhere, is thecommitment on the part of the judiciary to uphold and abide by

Judicial Ethics. Such commitment earns for the judiciary,

respectability and acceptability in the society it serves and

consequently, support in the protection and promotion of judicial

independence. The judiciary is entrusted with the special duty of

adjudication of all manner of disputes. That duty invariably entails

determination of right from wrong and doing justice to all manner of

people. Society expects those vested with that special responsibility to

be men and women of impeccable integrity and to act independently in

order to adjudicate with utmost impartiality. It cannot be gainsaid

that, universally the attribute that every society cherishes and

fervently expects in its Judiciary, even more than knowledge of the law

is integrity both at individual and institutional levels. These

expectations are captured in the words of an author who, writing about

the Canadian judiciary, said

We expect our judges to be almost superhuman in wisdom,

in propriety, in decorum and in humanity. There must be no

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other group in society, which must fulfill this standard of

public expectation.8

The expectations of societies in East Africa are no different as was

recently stated in the report of the Kenyan Tribunal to Investigate

the Conduct of the Hon. Mr. Justice P.N. Waki J.A., citing

observations by Chief Justice Bishop highlighting the need to avoid

causing premature suspension of a Judge from office, in the Guyana

case ofBarnwell vs. Attorney General (1964) 3LRC when he said

Society attributes honour, if not veneration, learning, if not

wisdom, together with detachment, probity, prestige and

power to the office of Judge; and it may be that incumbents

are imbued with an aura similar to that of a priestly caste.

So great are the social expectations and obligations that

bear on that responsible position, the role and functions

related to it.

Mr. Justice Thomas rationalized the same point thus:

We form a particular group in the community. We

comprise a select part of an honourable profession. We are

enstrusted, day after day, with the exercise of considerable

power. Its exercise has dramatic effects upon the lives and

fortunes of those who come before us. Citizens cannot be

sure that they or their fortunes will not some day depend

upon our judgement. They will not wish such power to be

reposed in anyone whose honesty, ability or personal

standards are questionable. It is necessary for the

continuity of the system of law as we know it, that there be

8 Gerald Gall: The Canadian Legal System

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standards of conduct, both in and out of court which are

designed to maintain confidence in those expectations.9

The expectations are diversely reflected in national laws, prescribing

on the caliber of persons suitable to hold judicial office, and the

manner in which they have to execute the functions of the office. In

East Africa, perhaps the most direct prescription on the caliber of

persons suitable to hold office is in respect to appointment of Judges to

the East African Court of Justice. The provision indicates what is

expected of them in the discharge of their function. It reads:

Judges of the Court shall be appointed by the Summit from

among persons recommended by the Partner States who

are of proven integrity, impartiality and independence and

who fulfill the conditions required in their own countries for

the holding of such high judicial office, or who are jurists of

recognized competence in their respective Partner States.10

The national Constitutions of the Partner States, however, do no

similarly stipulate for that requirement of a person to be appointed to

judicial office, as focus is more on professional qualifications and

experience, than on the character. Nevertheless, the requirement is

discernible from such other constitutional and statutory provisions as

relate to the judicial oath, to removal from office, and to the manner of

dispensing justice. A reference to a few such provisions will suffice to

illustrate this point.

9Guide to Judicial Conduct for England and Wales (cited at 1.2)10Article 24 (1) of the Treaty for the Establishment of the East African Community

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In the first place, it is a common requirement in all the three Partner

States, that before assuming office, every judicial officer must take the

judicial oath, which in essence is a formal undertaking and

commitment to administer justice on basis of the three principles in the

following or similar words; namely:

to well and truly exercise the judicial functionsand do

right to all..without fear or favour, affection or ill will.

Secondly, although personal character is not a feature in the

constitutional requirements for judicial appointment, there is a

common provision for removal of a judge from office for misbehaviour

or misconduct inconsistent with judicial ethics, notwithstanding the

guaranteed security of tenure. In other words, while in order to

enhance judicial independence, the State guarantees to a judicial

officer of the superior court, security of tenure of office, it does so

subject, inter alia, to the judicial officer remaining of good conduct and

behaviour.

Thirdly, various Constitutional and statutory provisions concerning, or

related to the judicial power of courts, and the manner in which that

power is to be exercised, show in diverse ways, that those entrusted

with the administration of justice are expected to discharge their duty

with integrity, impartiality and independence.

Judicial Ethics

The term, Judicial Ethics refers to the set of norms and standards of

conduct to which every judicial officer is under obligation to conform.

Those norms and standards are essentially designed to ensure

maintenance of impartiality, integrity and independence in the

discharge of the judicial function and generally to ensure avoidance of

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impropriety on the part of the judicial officers. For the judiciary to be

effective, it must command acceptability and respectability. It

achieves this by living up to the expectations of the society it serves.

The fundamental objective of judicial ethics therefore, is to provide

guidance to the judiciary towards the attainment of that acceptability

and respectability.

It is a truism to say that for the discharge of its functions, the judiciary

depends on the individuals who are called to the bench to serve as

judicial officers in the diverse grades of Judges and Magistrates. In

order to satisfactorily meet societys expectations, the judiciary as an

institution, has to rely, not only on the professional skills, but also

heavily on the characters and consciences of those individuals. It is

the personal qualities of those men and women that are the making of

good judicial officers, and in the result, of an acceptable, respected

and effective judiciary. Conversely, it is the personal weaknesses and

shortcomings of those individuals, which lead to the degeneration and

failure of the institution. However, it is not sufficient to rely solely on

the qualities of individual judicial officers, and to assume that they

would necessarily respond to all the issues of conduct in the same

proper way. No society can so rely on the goodness of its people that

it does away with laws and regulations. The same is true of the

Judiciary. There has to be in place, objective and known ethical norms

and standards by which a judicial officer is guided, and according to

which his/her conduct is measured. This serves two purposes; namely:

(a) to promote quality dispensation of justice, and (b) to re-assure

society that those entrusted with judging others, are themselves

beyond reproach, and are therefore, qualified to administer justice.

Because of that double purpose, therefore, judicial ethics do not relate

to the conduct of the judicial officer on the bench only, but also to

his/her conduct off the bench.

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of the East African Partner States has a different form of code adopted

at different times. The Tanzanian Judiciary adopted the Code of

Conduct for Judicial Officers of Tanzania at a Magistrates and

Judges Conference held at Arusha from 15th to 16th March 1984. five

years later, on the 21st July 1989, the Judges of the Supreme Court and

the High Court of Uganda, adopted The Code of Conduct for

Judges, Magistrates and other Judicial Officers, 1989. On 28th

October 2003, after extensive consultations among judicial officers of

all grades, the Uganda Judiciary formally launched a revised edition

entitled The Uganda Code of Judicial Conduct. The Judicial

Service Commission of Kenya has now made the Judicial Service

Code of Conduct and Ethics, under section 5(1) of the Public

Officers Ethics Act, 2003.

It is noteworthy that apart from the differences and variations in the

contents of the three codes, the first two are not in form of legislation,

as they were made by the judicial officers to whom they apply without

any statutory sanction, while the latest was made under a statute.

However, that disparity is not peculiar to East Africa. It has global

dimensions. There are serious differences of opinion on whether or not

such code should have the force of law. The most commonly advanced

arguments against giving the code the force of law are two. First it is

argued that legally enforceable code of conduct is incompatible with,

and is therefore, likely to compromise the principle of judicial

independence. Secondly, it is contended that an attempt to model the

rules of judicial ethics on the format of the Penal Code, would be

encumbered by the risk of leaving out many scenarios and issues of

conduct confront judicial officers from time to time resulting in gray

areas of uncertainty. The following statements, which preface the

Ethical Principles, issued for guidance of Canadian Federal Judges,

fairly express that viewpoint:

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1. The Statements, Principles and Commentaries

describe the very high standards towards which all judges

strive. They are principles of reason to be applied in light of

all the relevant circumstances and consistently with the

requirements of judicial independence and the law. Setting

out the very best in [them] does not preclude reasonable

disagreement about their application or imply that

departures fro them warrant disapproval.

2. [They] are advisory in nature. Their goals are to

assist judges with the difficult ethical and professional

issues, which confront then and to assist members of public

to better understand the judicial role. They are not and

shall not be used as a code or a list of prohibited

behaviours. They do not set out standards defining judicial

misconduct.

3. An independent judiciary is the right of every

Canadian. A judge must be and be seen to be free to decide

honestly and impartially on the basis of the law and the

evidence, without external pressure or influence and

without fear of interference from anyone. Nothing in [them]

can, or is intended to limit or restrict judicial independence

in any manner. To do so would be to deny the very thing

this document seeks to further: the rights of everyone to

equal and impartial justice administered by fair and

independent judges[Judges] have the duty to uphold and

defend judicial independence, not as a privilege of judicial

office but as the constitutionally guaranteed right of

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everyone to have their disputes heard and decided by

impartial judges.11

These statements contrast sharply with an opinion expressed by

Editor, Laurance M. Hyde, Jr., who, referring to the American revised

Model Code of Judicial Conduct, wrote:

there must be not only judges of good conscience, but rules

of ethical judicial conduct which are mandatory, and sanctions

for violation of those rules.12

Within the Commonwealth of Nations, there are still countries that do

not have any written code of judicial conduct, but a survey of those

which do shows that the majority opted for the non-statutory form,

whereby the judicial officers or their governing organs, take the

initiative to compile and adopt the set of norms and standards judicial

officers should abide by. Overall, it is safe to say that the initiative,

which has gathered momentum of late, has resulted from the steady

realization that the Judiciary is accountable to the society it serves, and

that in that regard, it acquits itself better by promoting adherence to

known norms and standards of judicial ethics that by appearing to take

refuge under the often-misunderstood umbrella of Independence of the

Judiciary.

Recent Initiatives

Undoubtedly, the quest for adherence to unwritten as well as written

judicial ethics is as old as the judicial institution. Thus we find the

following admonition to the Israelites in the Holy Bible:

11Ethical Principles for Federal Judges: Issued by the Canadian Judicial Council12Modern Judicial Ethics: The National Judicial College, University of Nevada, 1991.

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You shall appoint judges and officials throughout your

tribes to administer true justice for the people in all the

communities which the Lord your God, is giving you. You

shall not distort justice; you must be impartial. You shall not

take a bribe; for a bribe blinds the eyes even of the wise and

twists the words even of the just.13

And the great 16th century English Chancellor and Statesman, Sir

Thomas More, had this to say on impartiality:

If the parties will at my hand call for justice, then were it

my father stood on the one side, and the devil on the other,

his cause being good, the devil should have right.14

This paper is not intended to present a review of the historical

development of judicial ethics or codes of judicial conduct. It suffices

to mention that until the late 1990s there were, within the

Commonwealth of Nations, only a few judiciaries, including those of

Tanzania, Nigeria, Ghana and Uganda, which had written codes or

other formal instruments documenting the norms and standards of

conduct expected of judicial officers. Since then, however, there has

been dramatic increase in the adoption of written codes of judicial

conduct in one form or another. Among the recent converts are old

Commonwealth judiciaries like the Canadian and Australian judiciaries,

which prefer to refer to their instruments as guides rather than

codes. The Canadian Judicial Council issued the Ethical Principles

for Federal Judges in November 1998, and the Council of Chief

Justices of Australia published the Guide to Judicial Conduct, in

13Deuteronomy 16: 18-1914Life of Sir Thomas More: Yale University Press 1962

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June 2002. In the preface to the latter documents the Hon. Chief

Justice Murray Gleeson wrote:

The members of the Australian judiciary aspire to high

standards of conduct. Maintaining such standards is

essential if the community is to have confidence in its

judiciary. The Australian Chief Justices decided that it was

time to provide members of the judiciary with some

practical guidance about conduct expected of them as

holders of judicial office, and that such guidance should

reflect the changes that have occurred in community

standards over the years.

The major impact however, has resulted from the initiative undertaken

by the United Nations Centre for International Crime Prevention. In

April 2000, the Centre in conjunction with Transparency International,

convened a Judicial Group, comprising Chief Justices and other senior

judges from eight African and Asian countries to consider means of

strengthening judicial institutions and procedures as part of

strengthening the national integrity systems Following several

meetings, the group evolved what has come to called the Bangalore

Principles, which were subjected to further consultations and

discussions at wider conferences, until ultimately they were endorsed

at the 59th Session of the UN Human Rights Commission at Geneva in

April 2003. Many judiciaries have since then adopted the Bangalore

Principles as basis of their own codes or guides on judicial conduct.

Even the mother of all judiciaries of the Commonwealth

acknowledges the influence this initiative had in making of the Guide

to Judicial Conduct for England and Wales. In the Foreword to the

Guide, the Lord Chief Justice of England and Wales wrote:

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We are justifiably proud of our existing standards of judicial

conduct. However, the recent adoption of written code

complete eamja 4th annual conference report

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