Sub-regional Courts and the Recusal Issue: Emergent Practice of the East African Court of Justice

Date01 October 2012
Published date01 October 2012
DOI10.3366/ajicl.2012.0041
Pages365-387
I. INTRODUCTION

The legitimacy of the judicial process is based on the public's respect and on its confidence that the system settles controversies impartially and fairly. Judicial decisions rendered under circumstances that suggest bias, prejudice, or favouritism undermine the integrity of the courts, breed scepticism and mistrust, and thwart the very principles on which the judicial system is based. The judiciary must be extremely diligent in avoiding any appearance of impropriety and must hold itself to exacting standards lest it lose its legitimacy and suffer a loss of public confidence.1

The Supreme Court of Texas in Sun Exploration and Production Co v Jackson (1989) 783 SW 2d 202, 206.

Recent developments across common law jurisdictions have attracted attention to the significance of the principles of fair hearing, judicial bias, impartiality and recusal. One of these developments is the overwhelming impact of human rights discourse everywhere.2

D. Galligan and D. Sandler, ‘Implementing Human Rights’, in S. Halliday and P. Schmidt (eds), Human Rights Brought Home, Hart (2004), pp. 23–56, at 25, write that ‘human rights have become a fundamental ideology in modern societies, not only in the West where some levels of effectiveness have been achieved, but in other parts where it is held up as a goal to which to aspire’. M. Svensson, in Debating Human Rights in China, Rowman and Littlefield (2002), p. 28, describes human rights as a ‘global language’. Compare I. Balfour and E. Cadava, ‘The Claims of Human Rights: An Introduction’, 103(2/3) South Atlantic Quarterly (2004): 277–96.

Another is the growth in regional and sub-regional organisations, often with courts mandated inter alia to review decisions involving human rights claims and/or to embrace human rights values and basic norms of fair adjudication. One such organisation is the East African Community3

Constituted by the Treaty for the Establishment of the East African Community, as amended on 14 December 2006 and 20 August 2007 (‘the EAC Treaty’). The Treaty was signed on 30 November 1999 and came into force on 7 July 2000. The original partner states were Kenya, Uganda and Tanzania. Rwanda and Burundi each became a full member of the Community with effect from 1 July 2007.

(EAC). The current spotlight is on that Community's judicial organ, the East African Court of Justice4

Established under article 9 of the EAC Treaty.

(EACJ), which has recently had to grapple with key questions of fundamental justice and fairness. The right to a fair hearing before an independent and impartial tribunal is a standard and prominent feature of rights declarations.5

See for example, article 10 of the Universal Declaration of Human Rights; article 6 of the European Convention on Human Rights (ECHR); article 7(1) of the African Charter on Human and Peoples’ Rights; cf. article 19 of the Cairo Declaration on Human Rights in Islam.

Courts are there to dispense justice, and the process whereby they dispense such justice must itself also be fair and just. The common law's position on this is that justice must not only be done, but must also be seen to be done.6

Lord Hewart CJ in R v Sussex Justices ex p McCarthy [1924] 1 KB 256, 259; Lord Bingham of Cornhill in Davidson v Scottish Ministers [2004] UKHL 34, [7]; Frankfurter J, in Public Utilities Comission v Pollak (1952) 343 US 451, 476; the Supreme Court of Canada in Wewaykum Indian Band v Canada [2003] 2 SCR 259; (2003) SCC 45, [65]–[67].

Central to the common law's efforts in this respect is the nemo judex principle, otherwise known as ‘rule against bias’, which seeks to ensure that the impartiality of the adjudicating tribunal is manifest. While not a human rights court,7

See generally, S. T. Ebobrah, ‘Litigating Human Rights Before Sub-Regional Courts In Africa: Prospects And Challenges’, 17(1) African Journal of International and Comparative Law (2009): 79–101; S. T. Ebobrah, ‘Human Rights Developments in African Sub-regional Economic Communities during 2010’, 11(1) African Human Rights Law Journal (2011): 216–50.

the EACJ of necessity recognises and endeavours to apply global rights values,8

The EAC partner states undertook under article 7(2) of the EAC Treaty to abide (inter alia) by the rule of law, and ‘universally accepted standards of human rights’. The ‘fundamental principles’ of the EAC also include the ‘promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights’ (see article 6(d) of the EAC Treaty).

and established principles of fundamental justice – in particular, the right to a fair hearing and its instrumental rule against bias and recusal law

Typically, regional and sub-regional courts, when dealing with alleged judicial bias, are reviewing decisions of national courts of member/partner states ex post facto. These kinds of case, while possibly raising important political and sometimes legal issues for a regional organisation, its court and its member states, can often be readily disposed of with the required detachment and objectivity. Matters can, however, be more complicated when the court is faced with alleged bias within its own ranks – particularly if the claim is from a member state. Such situations are rarely provided for in legislation, and thus the court may have to resort to general principles and practice. These may not always be adequate, in which case the court may struggle to develop its own solution. The EACJ recently faced this kind of setting in AG of Kenya v Prof. Anyang’ Nyong'o & others9

EACJ, application no. 5 of 2007, decided 6 February 2007; [2007] EACJ 1.

(Nyong'o)

This article examines critically the emerging recusal jurisprudence of the EACJ to questions of judicial bias, against the backdrop of its landmark decision in Nyong'o. From a detailed analysis of the decision and of the Court's preferred modus operandi, it emerges that neither the EAC Treaty nor the common law provide satisfactory solutions for the EACJ. The Court's reliance on certain pronouncements of the Constitutional Court of South Africa is also problematic. The conclusion is that amendments to the EAC Treaty would be required in order to address properly the deficiencies in the Court's emergent jurisprudence on judicial bias.

II. JUDICIAL BIAS AND RECUSALS

The authority of any judicial system is highly dependent upon trust. In the field of judicial bias and recusals, this notion of trust is embraced within the concept of ‘confidence’. The importance of trust in this context has been widely recognised and accepted by both ancient and modern judges. The quotation at the beginning of this article from the decision of the Supreme Court of Texas is one modern example. Similarly, Lord Bingham said in Davidson v Scottish Ministers:10

[2004] UKHL 34, paragraph 7. Compare Frankfurter J, in Public Utilities Comission v Pollak 343 US 451, 476 (SC, 1952).

It has … been accepted for many years that justice must not only be done but must also be seen to be done. In maintaining the confidence of the parties and the public in the integrity of the judicial process it is necessary that judicial tribunals should be independent and impartial and also that they should appear to be so.

Lord Denning MR, with his typical clarity and compressed reasoning, expressed the principle in these words: ‘Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was biased.” ’11

Metropolitan Properties Ltd v Lannon [1969] 1 QB 577, 599.

This trust principle is crucial enough in domestic legal systems. It, however, assumes greater magnitude in a supra-national setting where nationals of states may not be so familiar with the reputations of judges from other states, or may otherwise be naturally inclined to view foreign judges with suspicion. Regional and sub-regional organisations are often established to promote cohesion, cooperation and/or integration between the participating states. There is often also an underlying desire to prevent violent conflict. It is therefore of the utmost importance for the judicial organs of these organisations to command the trust and confidence of all the member states. Failure to achieve this may render impossible the goals of peaceful resolution of supra-national disputes within the region. This brings into sharper focus the issue of public perceptions of decision making in regional and sub-regional tribunals like the EACJ, and the need for such courts to tread the path of judicial impartiality with great caution. An essential part of this process is to articulate clearly the principles upon which the tribunal aims to implement the norms of fundamental justice and fair and impartial adjudication on which it seeks to rely. Needless to say, it is also vital that such principles are robust and beyond reproach

The demand for the manifest fairness and impartiality of those who adjudicate on disputes by the rule of law and the fundamental principles of justice is both instrumental and an end in itself. It is instrumental in engendering the confidence in the administration of justice without which peaceful resolutions of disputes would be impossible. It is also an end in ensuring that procedural fairness is in fact achieved, and that litigants in fact receive a fair hearing.

The rule against bias is how the common law effectuates these ideals. In a statement that aptly encapsulates the common law principle, the Lord Justice-Clerk said in Robbie The Pict v Her Majesty's Advocate12

[2002] Scot HC 333, [16].

A judge who considers that there is a sound objection to his participation in a case has a duty to recuse himself at once. If he is in doubt, he should disclose his difficulty to the parties. But if he considers that there is no sound objection to his participation, it is his plain duty to proceed with the case …

This simply means that judges who are embarrassed...

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