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SEKOU: It’s tough job removing a judge from office

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By SEKOU OWINO
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The media has been brimming with reports and claims of petitions filed before the Judicial Service Commission seeking to remove a number of judges.

A look at the petitions or reports concerning them makes one wonder what their justification is.

Most of the petitions are based on litigants who appeared before the judges and experienced less value than they would expect from a court of law — that is, that the judges acted incompetently in handling the cases before them.

In other instances, the complainants allege that the judges engaged in acts of gross misconduct such as bribery.

All over the world, the law is that a judge ought to hold office quamdiu se bene gesserint, that is, during good behaviour.

In Kenya, the Constitution specifies rather narrowly the grounds on which a judge can be removed from office.

These include incompetence, bankruptcy, inability due to mental or physical illness or gross misconduct.

Some have exclaimed that the deluge of petitions for the removal of judges signify that the Judiciary has lost trust or that it faces a crisis. My answer is, not so quickly.

The Judiciary still carries the greatest faith of the citizens over the legislature and the executive branches of government.

Though it is easy to say that the complainants are mostly bitter losers who wish to tarnish judges after the loss of a case, it must also be borne in mind that the citizens and lawyers who complain against judges may be those who genuinely want the preservation of the allure of the Judiciary as the guardian of what is left of Kenya’s democracy.

Complaints against judges are not new but as the Indian Supreme Court once said: “A single dishonest judge not only dishonours her/himself and disgraces his office, but jeopardises the integrity of the entire judicial system.”

Complaints have been and continue to be made for the removal of judges from their offices in all countries and throughout the history of existence of the Judiciary as an arm of government.

Countries deal with them differently. In Kenya, petitions are sent to the Judicial Service Commission, the US and India have a system of impeachment of judges by the respective houses of parliament.

In these countries, the complaints are presented to the lower legislative body which deliberates and thereafter tries the judge (impeachment) as a tribunal would do in Kenya before they vote to decide whether the judge should be removed from office.

Even in the hallowed US Supreme Court, Justice Samuel Chase remains the only judge ever to have faced impeachment following complaints against him.

In January 1805, a select committee was formed to investigate Justice Chase on eight complaints.

The main one was political bias on his part which it was claimed had led Justice Chase to treat parties and their advocates appearing before him unfairly.

These complaints related to his judicial functions outside the Supreme Court. The charges were dismissed and Justice Chase resumed his work at the Supreme Court.

It is said that the dismissal of these complaints set a principle to ensure that the Judiciary in the United States would always weather partisan challenge.

This went ahead to establish a precedent that a judge would only be removed from office for acts of outright criminality.

More than a century after the case of Justice Chase, a complaint was raised in the Senate seeking the removal of three judges for too much feuding in public.

The public in Oklahoma demanded that judges Luther Bohanon, Alfred Murrah and Stephen Chandler were acting disgracefully and demanded their impeachment and removal to bring an end to their querulous public exchanges.

In 1968, the Senate subcommittee on Judicial Behaviour found that the conduct of the judges was reprehensible but not criminal as to justify impeachment and removal.

The threat of a complaint or investigation can cause a judge to remove himself from office.

In 2014, Judge Mark Fuller of the District of Alabama found the full force of the law when his wife reported to the police that he had engaged in domestic violence.

Despite having accepted a plea deal that would allow his record of violence to be expunged, a complaint was made by a third party to a Congressman.

After investigation, the charges were sent to the House of Representatives committee which informed the judge that he would be impeached if he did not resign. The judge resigned.

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Going through the US judicial history, one can say that the complaints against a judge do not always come in good faith.

Justice Jay Bybee of the Ninth Circuit of the United States Court of Appeal experienced this.

He had worked in the Department of Justice in the Bush administration when the war in Afghanistan was waged.

He was part of the legal team that gave an opinion on what came to be known as the “Torture Memos”.

These were legal opinions which appeared to justify interrogation methods that were used on treatment of persons at the Guantánamo Bay interrogation camp.

The legal opinion somewhat justified the truncation of internationally accepted principles of treatment of prisoners of war and held that the high-ranking al-Qaeda member captured outside the United States did not merit the strict protection of the Geneva Conventions against torture and inhuman treatment.

The war was particularly unpopular with the Democrats in the US.

A complaint to the House of Representatives called for the impeachment and removal of Justice Bybee for having participated in the issuance of those memos that justified torture on the ground that this act was professionally unethical.

However, there was no action on this complaint after it was found out that there was no unethical conduct on the part of Justice Bybee.

Judges can live lavishly and expect the treatment of royalty at public expense.

In August 2018, the State legislators in West Virginia expressed their disgust at the lavish tastes of all the judges of its Supreme Court and voted for their impeachment and removal.

The reason was that they had engaged in lavish spending of the State money for their personal comforts.

One of the grounds was that the four Supreme Court judges had spent $1 million to refurnish their offices.

One of the judges had spent $42,000 of public money on an antique desk in his home.

India makes the other country with interesting complaints for the removal of judges.

In 1993, a complaint was filed against Justice Ramaswami of India’s Supreme Court.

The complaint was that he had permitted extravagant use of public money on his private residence while he served as Chief Justice of Punjab and Haryana in 1990.

However, the motion to remove the judge from office failed to acquire the two-thirds majority and Justice Ramaswami kept his job.

Still in India, Justice Soumitra Sen of the Calcutta High Court resigned after one house of India’s parliament passed a motion for his impeachment.

The bit of concern is that these complaints related to conduct before he assumed judicial office.

The charges against Justice Sen were not only about his having misappropriated State money while acting as a court-appointed receiver but also that he had misrepresented facts before a court in 1983, almost 28 years before this complaint was made.

It does seem that judges can even be judged for acts which occurred before getting on the bench.

Having seen that judges can risk losing job for what they did before taking office, the instances of the four judges who lost their offices for what they saw in office in the United Kingdom will come as no surprise.

In 2015, the Judicial Conduct Investigation Office of the United Kingdom commenced investigations into allegations that some judges had viewed pornographic materials on their office computers.

The investigation body then recommended the removal of the judges saying that these were an inexcusable misuse of the Judiciary’s information technology resources and wholly unacceptable conduct for the office of a judicial holder.

The point was made that although viewing pornography for an adult in itself may not be illegal, doing so on office equipment is a serious act of misconduct that undermines public confidence in the Judiciary.

It may appear that judges are treated with awe during good behaviour but perhaps very harshly in the event of their making mistakes.

One can argue that judges are but just citizens like everyone else who should not be unfairly burdened with the obligation of moral potentates.

But one needs to remember the words of the committee which investigated the cased of Justice V. Ramswami: A judge’s morals are not the standards of the marketplace but are the “punctilio” of a higher code”.

Sekou Owino is Head of Legal, Nation Media Group



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Public officers above 58 years and with pre-existing conditions told to work from home: The Standard

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Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.

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However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
SEE ALSO: Thinking inside the cardboard box for post-lockdown work stations
Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
SEE ALSO: Working from home could be blessing in disguise for persons with disabilities
Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.

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Uhuru convenes summit to review rising Covid-19 cases: The Standard

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President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
SEE ALSO: Sakaja resigns from Covid-19 Senate committee, in court tomorrow

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Drastic life changes affecting mental health

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Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.

KBC Radio_KICD Timetable

Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.

Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.

The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.

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With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.

In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020.  It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.

A study by Dr. Habil Otanga,  a Lecturer at the University of Nairobi, Department of Psychology says  that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.

The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.

KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.

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Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.

As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.

“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”

Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.

“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.

Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.

“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”

Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.

“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.

Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.

Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.

She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.

Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.

“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added

Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.

“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and  also engage in   reading that would  help expand their knowledge.

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