I feel distracted and unable to see a clear path to justice in my property dispute with my former wife, especially since the judge assigned to our case is her relative. Please offer some insight on this.
To become a judicial officer—whether as a magistrate, judge, registrar, prosecutor, or counsel representing litigants—there is a specific sequence of qualifying events that must be followed. This sequence is established by law and is wholly and heavily influenced by principles of integrity, which are integral to the ethical standards upheld by these positions and their holders.
It is important to recognise that lawyers are introduced to the sanctity of their profession early in their training, either at the Kenya School of Law during the postgraduate diploma program in Advocates Training, or through the professional ethics module taught at the university level.
This module is tailored to the legal profession and is relevant for those working within the court system, in the private sector, or in the community. A crucial aspect of this module is helping lawyers understand how to recognise when their conduct undermines the integrity of the profession and the course of justice.
Upon qualifying as an Advocate of the High Court of Kenya, a graduate of the Kenya School of Law must be sworn in by the Chief Justice before being enrolled on the Roll of Advocates. This process is governed by the Advocates Act, specifically sections 15(1) to 15(5). Subsections (1) and (4) highlight the importance of taking an oath. As a lawyer aspiring to function as an advocate of Kenya’s High Court, the individual must petition the Chief Justice and subsequently take an oath or make an affirmation as an officer of the Court.
For an advocate to be appointed as a magistrate, judge, or registrar, Article 74 of the Constitution comes into play. This article states that before assuming, acting in, or performing any functions of a state office, a person must take and subscribe to the oath or affirmation of office in the manner and form prescribed by the Third Schedule or under an Act of Parliament. This requirement is further supported by the Promissory Oaths Act (Cap 100), which, through its First Schedule, specifies all positions that necessitate an oath or affirmation.
Photo credit: Shutterstock
The swearing-in or affirmation ceremony may appear ritualistic, but it is a crucial aspect of the legal profession. Its significance lies in a judicial officer's commitment to recognising, protecting, and promoting justice by all means, regardless of personal beliefs or ideological leanings. This commitment also includes acknowledging that their position derives from the Constitution and finding the conviction to defend it.
Furthermore, it entails interpreting the Constitution in a way that upholds justice, the rule of law, and democracy, even if such interpretations challenge the very tenets of the Constitution itself. Additionally, this ceremony is a promise to uphold and speak the truth and to maintain accountability in executing their duties, even within an adversarial justice system. Ultimately, it encourages adherence to the standards set by the legal profession and the judiciary as a whole, which emphasises impartiality, integrity, transparency, probity, and prudence.
Judicial officers are first and foremost human beings, and they have families and friends. This means that they may encounter cases in their courts that involve their relatives or acquaintances. Readers may wonder when a magistrate or judge should recuse themselves from a case. Here are some scenarios in which recusal is necessary.
Conflict of Interest: If a judicial officer has a personal interest in a case, they must declare this and inform their supervisors or seniors about the potential compromise in their ability to adjudicate the matter impartially. Perceived Bias: If there is a strong belief among the litigants or the public that a judicial officer may be biased against one party, they should consider recusal.
The case of Phillip K Tunoi & Another v Judicial Service Commission & Another, Civil Application No. 6 of 2016, illustrates this situation. Prior Engagement: If a judicial officer has previously represented one of the parties as counsel in the matter, it warrants recusal due to potential conflicts arising from their prior involvement.
While a request for recusal is not automatically granted, when a judicial officer takes this step, it demonstrates their commitment to maintaining the dignity and respect of the judiciary and the justice system. In conclusion, it is a judicial officer’s unequivocal pronouncement to uphold fairness, independence, competence, and integrity as expected of them by the Judicial Service (Code of Conduct and Ethics) Regulations 2020.
