SUMMARY REPORT OF THE STAKEHOLDERS’ CONFERENCE ON THE INDEPENDENCE OF THE JUDICIARY IN SUB-SAHARAN AFRICA, HELD AT MT. KENYA SAFARI CLUB, NANYUKI, KENYA, OCTOBER 3-7, 2006
I. PRELIMINARY CONFERENCE PROCEEDINGS
After preliminary conference proceedings that included formal introduction by all participants and official welcoming remarks by Mr. Wolfgang Ahner-Toennis, Konrad Adenauer Foundation (KAF) Country Representative to Kenya, the conference was officially opened by Hon. Justice Evans Gicheru, the Chief Justice of the Republic of Kenya.
In his keynote address Chief Justice Gicheru underscored the importance of the independence of the judiciary in any democratic society if indeed the rule of law was to prevail. The Chief Justice cited fair power sharing arrangement among the three arms of government namely the legislature, executive and the judiciary; clear and transparent appointment and removal criteria for judicial officers; and financial autonomy as some of the key ingredients in the attainment of an independent judiciary.
He reiterated that appointment of judicial officers should be based on merit and must be objective; with other considerations playing a secondary role. He suggested that other organs such as parliament and Bar Associations should be involved in the appointment process to enhance transparency and attain legitimacy in the eyes of the public.
However, he warned that due to imperfections in the electoral systems, elected parliamentarians are not always true representatives of the people nor do they always possess sufficient legal knowledge to enable them to successfully vet potential candidates for judicial office. He said this more often leads to a situation where proposed judges are approved or disapproved purely on grounds of party affiliation and affinity, ethnic or other local connections. In his opinion, this has a far reaching implication on the independence of the judiciary especially in Africa.
He reiterated the importance of personal integrity, accountability and discipline among judicial officers if true judicial independence, accountability and efficiency are to be achieved. He emphasised the importance of continuous education and specialised training for judicial officers at all levels in order to improve their performance levels. He informed the participants that Kenya was moving towards securing financial and administrative autonomy of the judiciary through a Judicial Service Bill that is currently before Parliament.
In conclusion, the Chief Justice challenged judicial officers to fight for their space and devise ways of sensitizing the public of their role in society as a way of demystifying the institution and enhancing public participation in their functioning.
Reacting to the Chief Justice’s remarks, some participants argued that in most African states, diversity was an equally fundamental factor in the appointment of judicial officers if peaceful co-existence is to be maintained. It was agreed that this was an important factor but should not be the premier consideration at the expense of merit. It was stated that placing diversity before merit would undermine the independence of the judiciary and hence impact negatively on the state of the rule of law. It was observed that appointments made based on factors such as ethnicity and regionalism had opened floodgates for abuse and weakened most judiciaries in Africa and therefore must always be exercised with caution.
II. SESSION 1
An Overview of the Independence of the Judiciary in Sub-Saharan Africa by Prof. Shadrack Gutto, University of South Africa (UNISA)
Prof Gutto began his presentation by tracing the diversity and complexity that characterise legal regimes and systems in Africa. He pointed out five main ones as:
• Heritages of colonial linguistic divisions and legal traditions that go under the labels Anglophone, Francophone, Lusophone and Arabophone – even in situations where the languages concerned are not the lingua franca of the population;
• The Common law and Continental legal traditions manifest in, amongst others, the judicial adversarial and inquisitorial processes;
• The subdivision within the “common law traditions” as a result of the so-called Roman-Dutch common law in Southern Africa (South Africa, Lesotho, Namibia, Swaziland and Zimbabwe) as opposed to the others in the common law category;
• The secular and the religious jurisdictions within Sudan, Nigeria and Somalia; and
• The pluralism arising from the co-existence of the secular and indigenous laws in all the countries, but with an exaggerated version in Swaziland.
He observed that African countries had so far failed in transforming the legal and justice systems to reflect coherent distinctly African value systems regarding law and justice. As a result, majority of African peoples are alienated from the laws and justice systems and feel oppressed rather than liberated by the content of the laws, transplanted alien judicial processes and judicial sanctions and remedies.
He observed that healthy separation of powers and power sharing structure is the key to social and political stability of any society as it guarantees effective accountability mechanisms and desired autonomy among the three arms of state.
Prof. Gutto stated that independence, non-interference, assistance and protection, dignity, accessibility, effectiveness and the binding authority of court decisions constitute some of the universally recognised principles that define the independence of the judiciary. Other factors are the manner of appointment, security of tenure (especially conditions for removal), remuneration and conditions of employment – including pensions and financial autonomy. He noted that lack of financial independence impacted negatively on the independence of the judiciary, but was quick to add that it is a problem that is not easy an one to resolve due to various reasons. For instance, he cited lack of direct representation of the judiciary in parliament where these issues are debated and passed, as the biggest hurdle to remedying of the situation.
He further lamented politicisation of appointment of judicial officers in the region as the biggest threat to the independence of the judiciary in most of the Sub-Saharan African states in general and Africa as a whole. The executive was seen to be having a strong presence and interference in the appointment of judges either directly or by manipulating the Judicial Service Commissions.
Prof. Gutto observed that many constitutions simply define the allocation of powers to the different branches without express indication of the principle of independence of the judiciary and other complementary principles. These constitutions are also expressive of the doctrine of parliamentary sovereignty and not constitutional supremacy over judicial, executive and legislative acts that reinforce the role of the judiciary. He noted that such constitutions sadly remain in force in countries such as Kenya, Zimbabwe and Mauritius.
However, he noted that a few recent constitutions have attempted to articulate the principle of independence of the judiciary and the associated complementary principles. He pointed out South Africa as the best example in this regard.
In his comparative study to illustrate the trends as far as the independence of the judiciary in the region is concerned, Prof. Gutto chose to focus on four countries namely Swaziland, Kenya, South Africa and Zimbabwe.
He observed that the Kingdom of Swaziland has experienced perhaps the worst constitutional and governance crisis in Sub-Saharan Africa due to concerted executive interference with independence of the judiciary. The International Bar Association’s fact finding mission established a systematic assault on the judiciary ranging from executive abuse and manipulation of traditional law and customs; non-enforcement of ‘sensitive’ judicial decisions; convenient and unjustified attack on ‘foreign’ judges; and emigration of experienced local judges due to executive interference. The chilling effect on the incumbents and prospective judges cannot be over-emphasised. He pointed out that it was still too early to judge whether the elaborate provisions in the new Constitution on the independence of the judiciary will restrain the recurrence of such crises.
Prof. Gutto observed that historically Kenya has had a long running problem with the independence of the judiciary. Since the 1960s until very recently at the beginning of the new millennium the judges in the High Court, Court of Appeal, the senior magistrates and senior prosecutors in Kenya have been drawn mainly from foreigners, especially Britain, or from Kenyans of European and Asian origin. Although some among them had integrity, the majority of them were very enthusiastic to please the appointing authority in order to keep their contracts renewed or their “citizenship” reaffirmed.
He pointed out the following practice to have had grave impact on the independence of the judiciary in Kenya,
• The appointment of the Chief Justice by the President without any consultation or advice from anyone or any institution.
• Appointment of all the High Court and Court of Appeal judges by the President with the “advice” of the Judicial Service Commission, which Commission’s own independence is questionable because it consists entirely of members appointed solely by the President.
• Firing of judges on grounds of “inability to perform” or for “misbehaviour”, which terms have not been defined in any law hence leaving room for abuse.
• Appointment and removal of magistrates by a Judicial Service Commission which is a President’s commission.
• Enormous powers that the Chief Justice wields over the judiciary. For instance, he selects judges to hear certain cases; grants or denies permission for judicial officers to participate in fora or seek further studies among other issues.
This demonstrates that the independence of the judiciary in Kenya is not only threatened by external forces but also from within.
He noted that even though the separation of powers and independence of the judiciary are entrenched in the Constitution, the new democratic state in South Africa has experienced accusations of intentions to undermine the independence of the judiciary. Between 1999 and 2000 when the Equality Act (Act No. 4 of 2000) was in the process of being drafted, there was widespread outcry among some legal practitioners and judicial officers that the proposal to establish special equality courts and the requirement that the presiding officers in those courts undergo some training amounted to encroachment on the independence of the judiciary.
Attention of the UN Special Rapporteur on the Independence of the Judges and Lawyers was drawn to the debate around the alleged threat to the independence of the judiciary at the time. The Special Rapporteur undertook a fact finding mission to the country between 7 and 13 May 2000 and prepared a report. Among other things, the Special Rapporteur made the following observations and recommendations:
• The need to transform the mindset of judges, magistrates, lawyers and prosecutors
• Magistrates must be perceived to be independent and should not be looked down upon by judges or anyone
• Accountability and transparency are the very essence of democracy and the judicial branch of government too needs to be accountable
• The need for transparent, representative and effective complaints mechanism for judicial officers
• Media comments on the judicial that do not amount to scandalising are an important aspect of free speech
• Judicial officers must be circumspect in what they say in court
• The need for an integrated legal profession
• The need for change of attitude of some judges towards continued legal education. Thus, continuing legal education for both magistrates and judges should be made compulsory
• The governments thinking as regards merging the JSC with the Magistrates Commission should be considered seriously and expeditiously
• Terms and conditions of service for prosecutors should be reviewed.
On the whole, the Special Rapporteur’s report confirmed that the judiciary was not under threat but the contrary perceptions needed to be addressed by all concerned.
Prof. Gutto observed that the South African courts have been very much awake to their responsibility to promote and protect the principle of separation of powers in order to preserve the independence of the judiciary. Two important judgements of the courts in this respect are the Van Rooyen and the Heath cases.
He further observed that the Constitutional Court had taken the initiative to move away from the old judicial culture that suppressed open public debate and criticism of court judgements and punished such critical comments under the judge-made law of the crime of “contempt of court”. In the famous Mamabolo case, the Constitutional Court defended the constitutional right to freedom of expression and opinion of the public regarding court decisions; with the proviso that such criticisms should not amount to challenging the authority of the courts or disregarding implementing court decisions.
He further noted that in order to address the challenges of transforming the judiciary while enhancing the separation of powers and independence of the judiciary, the Ministry and Department of Justice and Constitutional Development organised, between 14 and 16 April 2005, a national Colloquium on “Separation of Powers, Judicial Independence and Bills relating: Superior Courts; Judicial Education; Framework for Complaints Handling Against Judicial Officers; and Language Policy for Courts”. Two processes are presently being pursued to enhance access to justice and to transform the judiciary, namely Legal Services Charter and the development of Framework Policy Document on Transformation of the Judiciary.
Prof. Gutto observed that since the emergence of opposition political formations in Zimbabwe at the beginning of the new millennium that coincided with the heightening of tensions over the chaotic land reform process and the melt down of the economy, the independence of the judiciary has been seriously eroded. The executive has developed a tendency of not complying with court decisions and some judges have been harassed. The Chief Justices of the SADC region have expressed their concerns about the threat to the judiciary and so have the International Bar Association and some solidarity civil society formations in Botswana and South Africa. Chief Justice Anthony Gubbay was forced to “retire” prematurely. One case of alleged corruption of a judge is currently pending.
In conclusion, Pr of. Gutto noted that the independence of the judiciary in Sub-Saharan African countries remains fragile and requires nurturing. The pursuit of independence of the judiciary forms part of the larger historical challenge of nation building within the framework and guidance of commitment to democratic good governance, the practice of constitutionalism and the rule of law, and the promotion and protection of fundamental human and peoples’ rights. He hoped that continental judiciaries such as the African Court on Human and Peoples’ Rights and the African Court of Justice, once operational, will also enjoy degrees of independence that will ensure that justice is dispensed fairly and without fear, favour or prejudice; and that all judiciaries in Africa will claim their rightful place in a democratic state.
While contributing to his presentation, participants regretted the poor representation of both the executive and the legislature from all the countries represented at the conference. They deemed it very important for members of these arms to be present at such fora. KAF regretted the apathy and lack of commitment the two arms had shown towards the conference.
The need to build strong institutions as opposed to trusting personalities was emphasised at the conference.
On his part, Prof. Gutto thought that both merit and diversity should always be reflected in any multiethnic society for there to be greater legitimacy and participation in governance issues by all citizens. He further decried high level of inaccessibility to justice in most African states. Other than high costs of litigation, he observed that most litigants had been intimidated by judicial officers and lawyers by their way of doing things including, mode of dressing, language and the general hostility within most court vicinities.
III. SESSION 2
a) International Perspective: Review of International Standards on the Independence of the Judiciary by Okech Owiti, Dean, Faculty of Law, University of Nairobi
He described the general concept and rationale of the independence of the judiciary. This encompasses personal independence of judicial officers and institutional independence of the judiciary. He highlighted some of the key international instruments that address the independence of the judiciary. These included,
• International Covenant on Civil and Political Rights (ICCPRs), 1976
• Universal Declaration of Human Rights (UDHRs), 1948
• Basic Principles on the Independence of the Judiciary (Basic Principles), 1985
• Code of Judicial Conduct (‘Bangalore Draft’) (CJC), 2001
• Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary (PEI), 1989.
He pointed out that some of the key indicators of an independent judiciary that are recognized internationally include,
• Judicial officers’ freedom of expression, belief and assembly
• Judicial officers’ freedom to form and join associations
• Selection and appointment of judicial officers on merit, and individuals who posses integrity and are competent
• Judicial officers’ security of tenure and favouarble working conditions
• Promotion based on objective factors
• Internal assignment of cases
• Professional secrecy
• Personal immunity from civil suits
• Expeditious processing of charges or complaints against judges
• Judge’s right to a fair hearing
• Suspension or removal to be based only on incapacity or behaviour that renders a judge unfit to discharge his/her duty
• Disciplinary, suspension and removal proceedings that are based on known standards of judicial conduct, and are subject to an independent judicial review.
He noted that there are various factors that either guarantee or undermine this independence especially in Africa. These include,
• Economic situation i.e. social stratification and levels of corruption
• Political environment
• Policy parameters
• Socio-cultural beliefs and practices
• Public opinion
• General access to justice by citizens
• Judiciary as part of the integrated state
• Budgetary autonomy.
He stated that apart from resisting and moderating influence by the other branches thereby upholding the law, the judiciary is obligated to create security, stability and predictability and therefore build confidence among the citizens hence the need for its independence.
b) Safeguarding of Judicial Independence in Germany by Mr. Erhard Hackler, Attorney, Germany
Mr. Hackler presented to the conference a brief overview of the state of the independence of judiciary in Germany. He explained that after the dreadful experience under Hitler, Germans devised a strategy that would safeguard the independence of the judiciary. He pointed out that the independence of the judiciary and judges is expressly provided for in the Basic Law (Constitution) of Germany. The work of judicial officers is governed by the German Judiciary Act and any external influence in the course of a judge’s function of applying the law is inadmissible.
He pointed out that the executive had no sole role in the appointment of judicial officers and none in their functioning. He said judicial officers are only subject to judicial administrative supervision, for as long as in so doing, their independence is not undermined.
In order to ensure that judges remain impartial and enhance efficiency, cases are allocated to judges randomly once a year by the judges themselves and these cases cannot be transferred to another judge in the course of that year. This is in contrast to Kenya and other countries in the region where cases area allocated to judges by the Chief Justice. Further, judicial officers must file their performance returns annually.
Reacting to this experience, participants observed that perhaps lack of resources (financial, personnel and infrastructure) play a major negative role in judicial performance in Africa compared to Germany.
IV. SESSION 3
a) Continental Best Practices and Challenges on the Appointment and Removal Criteria of Judicial Officers by Mr. Mbuthi Gathenji, Legal Practitioner in Kenya
Mr. Gathenji highlighted some of the key persons and institutions that play a critical role in the appointment and removal of judicial officers in most African counties. These include the President, the Judicial Service Commission, parliament and the judiciary itself. He pointed out that appointment of judges should be based on merit and must have definite safeguards against arbitrary removal.
The removal must adhere to all rules of natural justice and follow due process of law.
It was proposed that Judicial Service Commissions should be independent and should comprise of people representing diverse interests and should not be exclusively left to lawyers and judges.
It was agreed that declarations of wealth by judicial officers just like other public officers should be made public.
It was noted that in some countries like Rwanda and Burundi, the use of traditional judges was still in use. It was therefore suggested that where such systems were still in use, infusion of certain minimum standards be considered to ensure impartiality.
b) Continental Best Practices and Challenges on the Promotion, Disciplining, Transfer and Training Policies of Judicial Officers by Mr. Wanyiri Kihoro, Legal Practitioner in Kenya
Mr. Kihoro pointed out that because of all the diverse legal systems in Africa, it is difficult to define best practice applicable to all countries. Therefore he focused his presentation on Kenya.
After describing the appointment of judges according to the Kenyan constitution, Mr. Kihoro proceeded to state that promotion of judicial officers just like appointment should be based on merit, intellect ability, probity and honesty.
He pointed out that transfers should never be used as a form of punishment as sometimes is the case.
He further stated that disciplining mechanism and procedure for judicial officers must be clear, predictable and transparent and should be executed by an independent body.
Participants were informed that in Germany, a judge can only be transferred with his or her consent.
Judicial accountability was said to be central to judicial independence and efficiency, and judiciaries in the region were asked to be more accountable to the public and their processes and operations be as open and transparent as possible.
V. SESSION 4
a) The Role of Lawyers and the Civil Society in Safeguarding the Independence of the Judiciary in Africa by Mr. Tom Ojienda, Chairman, Law Society of Kenya
The Role of Lawyers
Mr. Ojienda stated that lawyers, like judges, have always held a centre stage in the political, economic and social development of any democratic society. In particular terms, lawyers have from times antiquity been champions of respect for rule of law, human rights and democracy. Their duty towards their clients, the court, the legal profession, self and to the society at large, have been instrumental in ensuring that justice is upheld and offered to citizens of a country.
Mr. Ojienda observed that lawyers contribute to the independence of the judiciary through competent representation of their clients in court. As such, the quality of the decision of the judge and the justice dispensed thereof, will be independent or be seen to be independent depending, inter alia, upon the facts and arguments presented to him by the lawyers. Therefore, the duty of a lawyer in safeguarding judicial independence begins at the point he/she takes up representation of a client. He/she performs his/her role well when zeal for his/her client’s cause promotes a wise and informed decision of the case. He/she plays his/her badly, and trespasses against the obligations of professional responsibility, when his/her desire to win leads him/her to muddy the headwaters of decision, when instead of lending a needed perspective to the controversy, he/she distorts and obscures its true nature. Thus, a judge may easily lose impartiality and independence when the facts and points of law are unevenly presented to him.
Mr. Ojienda further observed that lawyers contribute towards safeguarding an independent judiciary by maintaining an independent legal profession because first, this is the pool that provides the bulk of people who are appointed as judges; and secondly, a lawyer who claims independence for his profession will unlikely be bent towards undermining judicial independence in his contacts with the judiciary. Consequently, the role of the lawyer in safeguarding the independence of the judiciary lies in his duties to his profession and in seeking to maintain its independence.
Lawyers also safeguard judicial independence by advocating for judicial and other reforms aimed at ensuring true implementation of judicial independence. He observed that advocating for judicial independence not only benefits the judges but also creates a favourable environment for legal practice by lawyers. It cannot be gainsaid that representing a client in a judiciary that lacks independence and has been compromised by, for example, external forces like the executive, is an effort in futility.
Another way that lawyers can safeguard the independence of the judiciary is by speaking out and against judicial interference from whatever quarter. Mr. Ojienda noted that by virtue of the close contact that lawyers have with the judiciary and their knowledge of the law, they are in a better position to witness, detect, and investigate interference of a judge’s independence and are therefore the prime people who should blow the whistle and resist such attempts.
Mr. Ojienda observed that just as it takes two to tango, so does it take two to commit an act of corruption. In the case of judicial corruption, the parties involved are more often than not, the judge presiding over a case on one side, and a party or parties to the case either acting on their own or through their advocates, on the other side. In this light, the lawyers have a two fold role to play in safeguarding judicial independence. First, lawyers should uphold professional integrity and dignity at all times by, amongst others, not offering or cause a bribe to be offered to a judge. Secondly, the lawyer should be at the forefront of fighting corruption in the judiciary. Further, they should not only speak out against the vice but should also report acts of judicial corruption to the relevant authorities concerned with anti-corruption in the judiciary.
The Role of the Civil Society in Safeguarding Judicial Independence
The civil society can safeguard the independence of the judiciary by
• Advocating for key constitutional and legal reforms that impact directly on the independence of the judiciary.
• Monitoring and evaluating court procedures and processes including judicial selection procedures.
• Monitoring and auditing judicial performance.
• Supporting judicial training and education.
• Ensuring compliance with domestic and international standards.
• Curbing judicial corruption.
It was agreed that questioning and criticising a judge for non-performance for instance because of undue and unreasonable delays in making rulings does not amount to judicial interference. It was further generally agreed that interference with judicial officer’s work will only be manifested if by so doing, a person influences the outcome of a particular case – but not merely putting pressure on a judge to carry out his/her judicial functions properly and effectively.
However, it was also agreed that there is a very thin line between advocating and lobbying and interference especially from the executive and political activists and a lot of caution must be exercised when doing this.
It was noted that the Bar Associations, media and civil society can contribute towards safeguarding judicial independence and efficiency by publishing reports on the operations of the judiciary and by carrying out comprehensive analysis of decisions made by the courts.
b) Guiding Judicial Reform Principles in Safeguarding the Independence of the Judiciary in Africa by Mr. Otiende Amollo, Legal Practitioner in Kenya
Mr. Amollo stated that judicial reforms like all other reforms in other sectors should be seen and treated as a process and not an event. Therefore, in order to come up with an effective reform strategy, it is imperative that the root problem is identified and subsequently, effective ways and means as well as resources needed to address the problem are devised and identified. In the judicial reform context, the reforms to be undertaken should always seek to inter alia safeguard the independence of the judiciary, enhance impartiality, enhance ef ficiency and promote access to justice.
Judicial reform in Africa has been deemed necessary because,
• It creates more open, competitive political systems and protects basic rights by scrutinizing and striking down laws and policies that exclude, discriminate or repress discrete and insular minorities.
• Ensures checks and balances within the political inter-branch relationships thus curbing against authoritarianism either by the legislature or the executive or both.
• Makes the legal and judicial system friendlier to the users.
Attitudinal change by the judiciary itself towards reform is very important if sustainable reforms are to be achieved. Judicial reform as relates to independence of the judiciary must seek to safeguard both institutional and personal independence of judicial officers.
Institutional independence is manifested where the operations and functioning of the judiciary as an organ of the state is de-linked from the other two arms of government; and operates without undue interference from any arm or person. The following principles should guide reform towards institutional independence
• Vesting of the judicial power upon the judiciary
• Establishing an independent and effective Judicial Service Commission
• Guaranteeing financial and administrative autonomy of the judiciary
• Having an independent and professional Bar.
On the other hand, the following principles should guide reform towards personal independence
• The manner of appointment and removal of judicial officers. It must be based on all inclusive, clear and transparent criteria
• Core functions assigned to judicial officers, mode of bench selection and creation of administrative courts/divisions. Judicial officers must always be left to undertake purely judicial duties. Discretionary appointment of judicial officers to commissions of inquiry and other quasi-judicial organs tend to dilute and undermine the personal independence of judicial officers appointed, their term of office; measures put in place to curb against external pressures; removal mechanisms. Arbitrary creation of administrative courts and subsequent appointment of judges to these courts without consultation also pose a danger to personal independence of judges
• Security of tenure and term of office. Acting judges and judges on contract are likely to be compromised easily thereby undermining the independence of the judiciary
• Terms and conditions of service of judicial officers must be adequate and conducive
• Mechanisms put in place to curb against interference with court proceedings and functioning of a judge
• Execution and implementation of administrative policies as regards transfers, training, promotion and disciplining of judicial officers. Fairness, merit, non-discrimination, due process and objectivity must always be the guiding principles in this regard.
VI. CONFERENCE RECOMMENDATIONS
i. There is need to institutionalise the best principles and practices by backing them with constitutional and legislative enactments.
ii. Judicial officers must themselves be on the forefront in safeguarding their independence and claiming their rightful place. In so doing, judges, magistrates and other support staff must work together.
iii. Appointment, removal, disciplining, transfer, training and promotion policies and criteria must be clear, transparent, certain and predictable to curb against abuse. In situations where parliamentary vetting is mandatory when appointing judges, in order to make it effective and transparent, there is need for prior notification to the general pubic of candidates whose names are being forwarded to parliament for consideration so that they too can have a say on those names and candidates.
iv. Bar Associations in the region must be independent and strive to uphold integrity so as to guarantee credible and noble men and women who can be appointed as judges.
v. There is need for peer review mechanisms at national and regional level, at all levels of the judiciary. It was reported that a Peer Review Committee already exists in Uganda.
vi. Since in most jurisdictions the Chief Justice is the head of the judiciary, there is need to decentralise some of his/her powers to ensure efficiency and fairness especially as regards administrative issues such as discipline, transfer, training and promotions.
vii. There is need for fiscal autonomy and harmonisation of remuneration. If properly implemented, this will help improve performance and curb against judicial corruption.
viii. There is need for continuing legal education and suitable induction programmes for judicial officers to enhance personal integrity of judicial officers.
ix. Security of tenure should also extend to magistrates.
x. There is need to sensitise the public on the role of the judiciary. In this regard, judicial officers together with other players should engage in outreach programmes through media, public lectures, open days and exhibitions.
xi. Use of ‘acting judges’ and ‘judges on contract’ to be discouraged. Such judges are vulnerable to manipulation by the appointing authority and lack the prerequisite security of tenure to independently carry out their task.
xii. All judicial reform initiatives must be transparent and all inclusive.
VII WAY FORWARD
It was proposed that in order to have an effective forum in future, the following factors need to be considered and addressed,
a. Incorporate as many people from diverse sectors as possible. For instance, there is need to involve members of the executive, legislature and the media in such fora because their actions or inaction have far reaching impact on the independence of the judiciary. In this regard, participants were encouraged to help in the mobilisation of these key players that they think should participate in the program.
b. There is need to focus more on the practical aspect. It was felt that the theoretical aspect on the broad subject of the rule of law has been discussed for far too long and therefore it is time that the paradigm shifts towards putting the theory into practice.
c. In line with the preceding suggestion participants felt future conferences should have fewer presentations and more time slotted for discussion with special focus on case studies, and perhaps incorporate group work.
d. Participants were challenged to be proactive in their own jurisdictions and sell the ideals of the rule of law to their people and generate a debate around the subject.
e. There is need to consider gender aspect.
VIII. CONFERENCE RESOLUTION
Reaffirming that the judiciary must be independent without any undue internal and or external pressures and influences in accordance with international standards,
Acknowledging that an independent judiciary is key in any democratic society that upholds the rule law,
Noting that the independence of the judiciary lies at the heart of a well-functioning judiciary and is the cornerstone of a democratic society based on the rule of law that
• administer justice
• contribute to the equitable and stable balance of power within the government
• promote access to justice
• protect rights and preserve the security of person and property
• resolve commercial disputes in a predictable and transparent fashion that encourages fair competition and economic growth; and
• are key to countering public and private corruption; reducing political manipulation, and increasing public confidence in the integrity of government.
Noting that the independence of the judiciary is generally weak in the sub-Saharan Africa
Regretting that any shade of independence of the judiciary ends at the constitutional level of separating state power into the three traditional arms of government with no real structural and practical support to enhance this independence,
WE NOW RESOLVE,
a) To form a strong network in the region that will work towards the harmonisation of laws and policies at national and regional level that impact directly on the independence of the judiciary.
b) To take forward through in-depth research, exchange of views among all key players and to play an active role towards the finalisation of basic Pan-African Principles and Best Practice model as relates to the independence of the judiciary in Africa.
c) To work closely with the African Union and the Pan-African Parliament to ensure that there is harmonization of policies, laws and practices as regards the independence of the judiciary.
d) To promote and lobby for the independence of the judiciary in their respective countries and the region as a whole.
e) To form a working committee comprising of participants from all the three conferences, namely Nanyuki, Mombasa and Cape Town to formulate clear intervention strategies that will include but not limited to in-depth research, exchange of views among all key players and contribute towards the finalisation of basic Pan-African Principles and Best Practice model as relates to the independence of the judiciary and the state of the rule of law in Africa.
Volunteer committee members from this conference are Prof. Shadrack Gutto (South Africa), Prof. Joseph Kakooza (Uganda), Hon. Margareth Mensah-Williams (nominated in absentia) (Namibia), Mr. Tom Ojienda (Kenya), Ms Karin Alexander Neil (South Africa), Ms Stella Mutuku (Kenya), Mr. Mandefrot Belay (Ethiopia) and Prof. Stanislas Makoroka (Burundi).
IX. LIST OF DELEGATES:
Justice Evans Gicheru, Chief Justice of the Republic of Kenya,P.O. Box 30041, Nairobi, KENYA, Telephone +254 20 221221; Fax +254 20 211745
Justice Philip Tunoi, Appellate Judge, Court of Appeal, P.O. Box 30041, Nairobi, KENYA, Telephone +254 20 221221; Fax +254 20 318172
Justice J.A. Osiemo, Judge, High Court of Kenya, Nairobi, P.O. Box 30041, Nairobi, KENYA, Telephone +254 20 221221; Fax +254 20 318172
Lady Justice Hannah Okwengu, Judge, High Court of Kenya, Nyeri,P.O. Box 70, Nyeri, KENYA, Tel. +254 61 2030715
Lady Justice Joyce Khaminwa, Judge, High Court of Kenya, Embu, P.O. Box 256, Embu, KENYA, Tel. +254 68 30661
Mr. Tom Ojienda, Chairman, Law Society of Kenya, Telephone +254 727 410888; +254 51 2213149, Fax +254 51 2215622, E-mail: firstname.lastname@example.org
Mr. Elijah Ireri, Treasurer, ICJ Kenya,P.O. Box 59743, Nairobi 00200, Kenya, Telephone +254 20 3875980, E-Mail: email@example.com
Mr. Mbuthi Gathenji, Advocate of the High Court of Kenya and Assisting Counsel to the Tribunal Investigating Court of Appeal Judges, P.O. Box 76122, Nairobi, KENYA, Telephone +254 733 874824, E-mail: firstname.lastname@example.org ; email@example.com
Mr. Wanyiri Kihoro, Advocate of the High Court of Kenya and former Member of Parliament, Telephone + 254 722 212836,
Mr. Okech Owiti, Dean, Faculty of Law, University of Nairobi, P.O. Box 30197, Nairobi 00100, Kenya, Telephone +254 20 340856\8\9; Mobile +254 722 529268, E-mail: firstname.lastname@example.org
Mr. Edward Muriithi, Deputy Registrar, High Court of Kenya, Telephone +254 20 250107, E-Mail: email@example.com
Mr. Otiende Amollo, Advocate of the High Court of Kenya and Council Member of the Law Society of Kenya, P.O. Box 55645, Nairobi 00200, KENYA, Telephone +254 722 526221; +254 20 247818, E-mail: firstname.lastname@example.org
Justice Amos Twinomujuni, Appellate Judge, Court of Appeal of Uganda, P.O. Box 7085, Kampala, UGANDA, Telephone (mobile) +256 77 2 420560, +256 41 2 258537, E-Mail: email@example.com
Lady Justice Mary I.D. Engena-Maitum, Judge High Court,P.O Box 3967 or 7085, Kampala, UGANDA, Telephone +256 772 622 755 (Mobile);(Office) +256 41346908; (Home) +256 41269060 ; Fax +256 4134411, E-mail: firstname.lastname@example.org
Prof. J.M.N. Kakooza, Chairman, Uganda Law Reform Commission, Workers House 8th Floor, Plot 1, Pilkington Rd., P.O. Box 12149, Kampala, UGANDA, Telephone Direct +256 41 255089 or General +256 41 33113, Mobile +256 772 419793; Residential +256 41 534124, Fax +256 41 254869,
Email: email@example.com or firstname.lastname@example.org;
Justice Amiri R. Manento, Principal Judge of the High Court of Tanzania, P.O. Box 9004, Dar es Salaam, TANZANIA, Telephone+255 51 2111587; 2124363; 2666971, Fax +255 51 21116654; 2132343, E-Mail: email@example.com
Justice Juxon Isaac Mlay, Judge, High Court of Tanzania, P.O. Box 9004, Dar es Salaam, TANZANIA, Telephone +255 51 2111587; 2124363; 2666971, Mobile +255 784 761061; Fax +255 51 21116654; 2132343, E-Mail: firstname.lastname@example.org
Justice (Rtd) Anthony Bahati, Chairman, Law Reform Commission, P.O. Box 3580, Dar es Salaam, TANZANIA, Telephone: Cellular: +255 754 307810; Office: +255 222123533, Fax +255 222123534, E-Mail: email@example.com
Mr. Charles Rwechungura, President, Tanganyika Law Society, P.O. Box 2148, IPS Building, Dar es Salaam, TANZANIA, Telephone +255 22 2114291, 255 22 2114899, Cellular +255 748 507429; Fax +255 22 2111721, E-Mail firstname.lastname@example.org
Ms. Stella Mutuku, Chief Court Administrator, East African Court of Justice, P.O Box 1096, Arusha, TANZANIA, Telephone +255-27-2506093, Mobile: +255-787-273637, Fax:+255-27-250609394, E-mail:email@example.com
Justice Hagos Woldu, Presiding Judge, Federal Supreme Court of Ethiopia, P.O. Box 6166, Addis Ababa, ETHIOPIA, Telephone: (Res) +251 16189564, Mob. 251 911622625, Fax +251 11116241, E-mail: c/o firstname.lastname@example.org
Hon. Justice Adil Ahmed Abdullahi, Vice President, Federal High Court of Ethiopia, P.O. Box 3483, Addis Ababa, ETHIOPIA, Telephone +251 11 276 75 41; Fax +251 11 275 53 99, E-mail: email@example.com
Mr. Shimelis Kemal, Deputy Prosecutor General, Addis Ababa, Ethiopia, firstname.lastname@example.org
Mr. Mandefrot Belay, Director, Justice System Reform Program, P.O. Box 32596, Addis Ababa, ETHIOPIA, Fax +251 11 122 37 60, E- Mail: Mandefrot@yahoo.com or Mocbemail@example.com
Mr. Getachew Kitaw, President of the Ethiopian Law Society, P.O. Box 9031, Addis Ababa, ETHIOPIA, Telephone Off: +251 11 5 515972 ; Mobile + 251 911 202341, Fax + 251 11 5 530122, E-mail:
Ms Serkalem Zebene, Council Member, Ethiopian Women Lawyers Association (EWLA), P.O. Box 255, Addis Ababa, ETHIOPIA, Telephone +251 911233615; Fax +251 11-552-39-46, E-mail: firstname.lastname@example.org
Dr. Alphonse Ngagi, Dean, Faculty of Law, National University of Rwanda,E-Mail: email@example.com
Prof. Stanislas Makoroka, Dean Faculty of Law (Dean Faculte de Droit), P.O. Box 87, Bujumbura, BURUNDI, Télephone (O) +257 22620; (Res): +257 4253, mobile: +257 924821; Fax: +257 223288 or +257223491, E-mail: firstname.lastname@example.org
M aitre Tharcisse Ntakiyica, Batonnier du Barreau de Burundi (Bar Association), E- Mail: email@example.com
Ms Consolata Baranyizigiye, Project Officer, Justice and Peace (Justice et Paix) Commission, P.O Box 7074, Bujumbura, BURUNDI,
Building de journal Ndougoti, Rue de la mission 46, Téléphone +257-243126; Fax +257-247704, E-mail: firstname.lastname@example.org; or email@example.com
Justice Duncan G. Tambala, Supreme Court of Malawi, P.O. Box 30244, Chichiri, Blantyre 3, MALAWI, Telephone +265 1 870255/265 9 510606
Fax +265 1 870213/265 1 870677, E-mail: firstname.lastname@example.org
Justice Anaclet C. Chipeta, Judge, High Court of Malawi, P.O. Box 30244, Chichiri, Blantyre 3, Malawi, Telephone +265 8 841 185/875 502/836 682, Fax +265) 1 870 213
Mr. Edward Chisambo, Managing Editor, Blantyre Newspapers Ltd, Blantyre Newspapers Limited, P.O. Box 39, Blantyre, Malawi,
Telephone Mobile + 265 09435817; Fax + 265 01871233, E-Mail: email@example.com
Mr. Robert Phiri, Programme Manager, Public Affairs Committee, P.O. Box 348, Lilongwe 3, Telephone +265 1 772696; Cell +265 8833262, Fax +265 1 772696, E-mail: firstname.lastname@example.org
Mr. Mabvuto Hara, President, Malawi Law Society, P.O. Box E. 464,
Post Dot Net, Blantyre, Malawi, Telephone +265 1 873 866/265; 8 839 699; Fax +265 1 873 866, E-Mail: Shumbachambers@sdnp.org.mw
Justice Elton.P.B. Hoff, Judge, High Court of Namibia, P.O. Box 9332, Eros, Windhoek, Telephone +264 811288065 (cell), +264- 61- 231414 (h); +264-61-292-1273 (O), Fax +264-61-231414 (h); +264-61-221686(O),E-Mail: email@example.com
Hon. Margareth Mensah-Williams, Deputy Chairperson of the National Council of Namibia, Private Bag 13371, Windhoek, NAMIBIA, Telephone +264 61 2028111 / +264 81 1273227, Fax +264 61 2028179,E-mail: firstname.lastname@example.org
Ms Auguste Shali, Parliament Official, Namibia, Private Bag 13371, Windhoek, NAMIBIA, Telephone +264 61 2028111; Fax +264 61 2028179,
Mr. Karel Steenkamp Dannhauser, Councillor, Law Society of Namibia, P.O. Box 714, Windhoek, NAMIBIA, Telephone +264 61 230263\088, E-mail: email@example.com
Justice Tholakele Hope Madala, Judge, Constitutional Court of South Africa, Private Bag X1, Braamfontein, 2017 SOUTH AFRICA, Telephone +27 11 359-7444; Fax +27 11 403-8888, E-mail Madala@concourt.org.za
Mr. Vincent Saldanha, President SADC Lawyers Association, P.O. Box 5227, Cape Town 8000, SOUTH AFRICA, Telephone +27 21 359-7444; Fax +27 21 423 0935, E-mail: firstname.lastname@example.org
Ms Karin Alexander, Program Coordinator, Transitional Justice in Africa, Institute for Justice and Reconciliation, No. 8, The Warehouse Studios, 97 Hope St, Gardens, Cape Town, 8001, SOUTH AFRICA, Telephone +27 21 659 7139 (work); +27 21 461 8224 (home), +27 722089794 (cell); Fax +27 21 659 7138, E-Mail email@example.com
Prof. Shadrack Gutto, Director, Centre for African Renaissance Studies, University of South Africa (UNISA), UNISA: CARS; P.O. Box 392; UNISA, Pretoria; 0003 SOUTH AFRICA, Telephone +27 12 320 3180/1; +27 829311683, Fax +27 12 320 3417, E-Mail: firstname.lastname@example.org
Erhard Hackler, Attorney, Bonn, Germany, E-mail: email@example.com
Mr. Reagan Kyalo Mwanza, Interpreter, P.O. Box 9038, Nairobi 00200, KENYA, Telephone +254 721 251348;721 818735, E-mail: firstname.lastname@example.org
Dr. Michael Nzunga, Interpreter, P.O. Box 9038, Nairobi 00200, KENYA,
Telephone +254 721 251348; 721 818735,E-mail: email@example.com
Mr. James Munene, Technician, P.O. Box 9038, Nairobi 00200, KENYA,
Telephone +254 721 251348; 721 818735, E-mail: firstname.lastname@example.org
Mr. Gerd Bossen, Director, Rule of Law Program for Sub-Saharan Africa, P.O. Box 66471, Nairobi 00800, KENYA, Telephone+254 20 2725957; 2718035; 2718971, Fax +254 20 2724902, E-mail: email@example.com
Mr. Peter Wendoh, Program Officer, Rule of Law Program for Sub-Saharan Africa, P.O. Box 66471, Nairobi 00800, KENYA, Telephone +254 20 2725957; 2718035; 2718971, Fax +254 20 2724902, E-mail: firstname.lastname@example.org
Ms. Inez Odongo, Secretary, Rule of Law Program for Sub-Saharan Africa Program, P.O. Box 66471, Nairobi 00800, KENYA, Telephone +254 20 2725957; 2718035; 2718971, Fax +254 20 2724902, E-mail: email@example.com
Mr. Wolfgang Ahner-Toennis, KAF Resident Representative, Kenya, P.O. Box 66471, Nairobi 00800, KENYA, Telephone +254 20 2725957; 2718035; 2718971, Fax +254 20 2724902, E-mail: firstname.lastname@example.org