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

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.²2

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.

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 & others⁹9

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

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.

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:¹⁰10

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

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 Advocate¹²12

[2002] Scot HC 333, [16].

This simply means that judges who are embarrassed...