Judge stands down, citing 'intensity of insolence' from counsel

16 April 2021 · Carmel Rickard

The search for Kenya’s new chief justice has reached a crucial point: an intensive fortnight of candidate interviews by the judicial service commission. But the battle over the future of the jurist leading the search, Kenya’s acting chief justice, Philomena Mwilu, is continuing in parallel. Most recently, the high court judge set to hear a petition that Justice Mwilu be removed as acting CJ and deputy CJ among other positions, because of graft allegations against her, has announced he will recuse himself. In his written decision on the question, the high court judge, Patrick Otieno, explained his recusal: given the line taken by Justice Mwilu’s counsel in the matter, he would be seen to have been ‘intimidated’ if he found for one side, or to have been ‘propelled by vengeance’ if he found for the other, he said. The judge further castigated counsel for the DCJ for making ‘preposterous accusations’ against him and for the ‘intensity of insolence’ he experienced from counsel in the case.

Read judgment

The question of when judges should recuse themselves from hearing certain cases continues to be one of the most hotly-debated judicial issues in the region. The latest decision by Patrick Otieno, a member of Kenya’s high court bench, will add fuel to these flames. The judge has recused himself from hearing a petition seeking orders barring the second most senior jurist in the country from continuing in office,

Judge Otieno first issued orders effectively removing deputy chief justice Philomena Mwilu from office two months ago, in response to the petition. Just days later he gave Judge Mwilu a temporary reprieve, issuing stay orders pending full argument of the matter.

But when the case came back to court, it did not proceed as planned. In his decision, issued after the hearing, the judge explained what had happened and why it had led to his decision to recuse himself from further hearings in the matter.

‘Misbehaviour’

The case was scheduled to begin at 9am, but the physical court files had not been delivered to the registrar by the courier. After a two-hour adjournment, the file had still not been received.

Counsel for the deputy chief justice, Nelson Havi, then addressed the court.

Judge Otieno said later that Havi ‘took the position that my conduct in the matter amounts to misbehaviour which he can no longer entertain as the President of the Law Society of Kenya.’ Among other things, he said that the judge ‘was bound’ to hear the parties and that ‘absence of the file is an excuse not expected of a judge’.

The judge noted that Havi said he would take up the matter with the judicial service commission, and that the Chief Justice had given directions in July 2020 saying that a judge should hear parties wherever he or she sat. Further, he had said that the absence of a physical court file is ‘no bar to a hearing because as a judge I should ensure that I have a digital file to work upon.’

‘Intensity of insolence’

‘I must today confess that the intensity of insolence I have received from counsel, in particular Mr Havi, while flashing his position as the President of the Law Society of Kenya, in both social media and before me in court, has demonstrated wholesome disrespect to me as a person and [to] the court I preside over.’

Judge Otieno said he wanted to remind Havi that judges were human beings and Kenyan citizens, and that they ‘enjoy rights and freedoms like all citizens and must not be treated like serfs in medieval Europe’.

Counsel had a duty, as officers of the court, regardless of age or seniority, to ‘exercise sobriety, and show courtesy and decorum in both deeds and words, to the court. He criticised Havi as president of the law society for ‘social media attacks on the judiciary and its officer’ and questioned what a new member of the bar would learn from ‘the current leadership’ of the society about professional etiquette and decorum.

‘Arm-twisting’

The judge said he had sworn by the Bible when he took his judicial oath and he would be guided by that oath and continue to perform his duty to the public without being influenced by ‘intimidation and arm-twisting’.

Each time the case was called he had asked the parties if any had ‘misgivings’ about his continuing. No-one raised any problems; however, he said, ‘I think not all have been honest and candid when they have urged me to go on,’ and he now determined that Havi and his team ‘have no faith in me handling this matter’.

Should he have taken charge of the delivery van, he asked, or cut into his recess to go to court to pull the file ‘to assuage Mr Havi’s feelings’?

Preposterous

‘As preposterous as the accusation may be, my interest in the matter remains the dispensation of justice to the parties’. Faced with all the accusations levelled at him, even though they were baseless, ‘and to avoid any semblance of perceived bias that might be read into my decision, I find it in the wider interests of justice that the matter be handled by another judge.’

‘(W)ith those accusations on record, if I were to find for the party that Mr Havi appears for, the perception would be that I have been intimidated, while if I were to find against them, it could be perceived that I have been propelled by vengeance. In both scenarios, I would have failed the test of perceived bias.’

Until another judge was appointed to hear the matter, the stay order allowing the DCJ to continue in her position, was to be maintained, he said. In theory that means the DCJ will continue to lead the search for the country’s next chief justice. In practice, however, it could be even more complicated: one of the 10 candidates shortlisted to be interviewed by the JSC for the CJ’s position, Philip Murgor, has written to the commission saying that the DCJ should recuse herself from the interviewing panel, to ‘preserve the integrity of the process’.

‘A matter of justice’, Legalbrief, 13 April 2021

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.