By Walter Khobe

Courts are not infallible, and mistakes do occur when judges write judgements. It is how judges react to those mistakes that differentiate judges. Some judges seem to respond to mistakes by ignoring the problem, while others (the humble judges) bravely face the problem head-on. The humble judges explain and confront the embarrassing problem.

The High Court in the Wajir Governor Election Petition rendered judgment finding that the Governor’s election was invalid on two grounds. One, the governor was ineligible to contest the election on account of failing to meet the eligibility requirements for lacking a university degree. Two, that the electoral process violated the electoral laws and the Constitution for breach of the secrecy of the vote.

When the Governor appealed to the Court of Appeal, the Court of Appeal upheld the High Court’s finding that the governor was ineligible to contest the election. Having found so, the Court of Appeal found that it was moot (unnecessary) for it to address the second question on whether the election for the governor was conducted in a manner that violates electoral laws. Thus, the Court of Appeal did not overturn the High Court’s finding on the second question of violation of the secrecy of the vote.

On a second appeal to the Supreme Court, the Supreme Court through a majority verdict overturned the Court of Appeal’s finding on the eligibility of the Governor to contest. The majority reasoned that the question of eligibility was a pre-election dispute that should have been resolved by the Electoral Commission and not the Elections Court. Further, the Majority joined by Justice Lenaola (with Chief Justice Maraga dissenting) held that the Supreme Court could not address the second question, on whether the High Court was right in its finding that the electoral process violated the electoral laws and constitutional principles with respect to the secrecy of the vote. The Majority and joined by Justice Lenaola reasoned that, this question on the violation of the secrecy of the vote, had not been addressed by the Court of Appeal thus an appeal could not lie to the Supreme Court on that question.

This has led to an embarrassing judicial outcome, where the Supreme Court (through the bench majority) has found that the governor is rightly in office, while the High Court’s finding on the violation of the secrecy of the vote and thus the violation of electoral laws and constitutional principles has not been reversed. The finding by the High Court has not been reversed by either the Court of Appeal or the Supreme Court, as both courts failed to deal with that question. Is it right for the governor to continue to hold office in the face of an undisturbed finding by the Electoral Court that the electoral process was conducted in a manner that violates the law and the Constitution? Clearly, this is a glaring error on the part of the Supreme Court.

In the face of this glaring error, the Petitioner at the Electoral Court returned to the Supreme Court praying for a review of that Court’s decision. However, in a ruling rendered on 20th February 2019, the duty judge, Justice J.B. Ojwang’, in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad, Review Motion, 20th February 2019 declined to certify the application urgent and affirmed the merit of the Court’s judgment. He notes: “The Application rests on broad argument on the perceived merits of a final, 2010-paragraph Judgment founded on distinct principles resolving an electoral dispute. The case ceases to be requisite for short-term, additional litigation, and is not a fit case for a certificate of urgency.”

The duty judge seems to start from the premise of infallibility of the merits of the impugned judgment. This brings us to the question of judicial humility and its place in review applications.

Judicial humility is manifested when a judge is willing to admit and correct his errors. (See Marah Stith McLeodA Humble Justice’(2017-2018) 127 The Yale Law Journal p.196). The humble judge thinks that he might be mistaken. Humility requires an acknowledgement of one’s fallibility. The attitude of openness to the possibility that one might be mistaken may result in abandonment of one’s views.

Brett Scharffs has described the virtue of judicial humility as knowledge of the limitations of one’s experience coupled with openness to the experiences of others as a way of exceeding those limitations. (See Brett Scharffs, The Role of Humility in Exercising Practical Wisdom, 32 University of California Davis Law Review 127, 164 (1998)). He writes: “Humility also denotes an attitude of openmindedness and curiosity, a willingness to learn, reassess, and change. One who is humble can be persuaded that her conclusions are wrong; that her perspectives are limited and should be broadened; that her settled opinions merit reconsideration.” In short, a humble person is a teachable person.

We can contrast the approach by the duty judge to that by Justice Johann Froneman of the South Africa’s Constitutional Court in Jacobs and Others v S, decision rendered on 14th February 2019. Justice Froneman writes:The italicised portion of that quotation wrongly describes the law. Even Homer nodded.  And courts sometimes make decisions per incuriam, or in a more brutal translation, ‘through lack of care’. The Latin phrase sounds more impressive than its English translation, but, embarrassing as it may turn out to be, one must examine whether the decision suffers from a lack of care….

I consider that the offending sentence was made through lack of care, at least on my part. The lack of care is this: As precedential authority for the statement that the effect of the doctrine of common purpose implicates the constitutional rights of dignity and freedom of the person and the right to a fair trial, including the right to be presumed innocent, Makhubela relied on this Court’s judgment in Thebus. The problem is that Thebus said exactly the opposite.

So in Makhubela, in my view, we misunderstood and misapplied the reasoning and outcome of this Court’s own decision in Thebus. Apart from its reliance on Thebus, our judgment in Makhubela offers no other substantive justification for asserting that the doctrine of common purpose implicates the constitutional rights of freedom of the person and the right to a fair trial, including the right to be presumed innocent. That is sufficient reason not to be held to the errant statement in Makhubela. It was in conflict with the precedent it relied on. To my mind that shows it was clearly wrong.”

This is a clear example of judicial humility that Kenyan judges should emulate. Judges who have to decide important questions of public policy should be self-reflective, both before and after the fact. A judge who admits he made a mistake is performing a valuable service that is all too rare among judges in our judiciary.