TRIGGERING JUDICIAL INDEPENDENCE AND ACCOUNTABILITY

The Case of the Commonwealth Guidelines Presentation by Stephen M. Mwenesi

The Backdrop
A well functioning judicial system is
essential to improve governance, combat corruption and consolidate the democratic order and foster economically sustainable development. Improved judicial system is key to promoting rule of law and development and good governance

Fundamental Questions
What is judicial independence? What are the essential elements that need to be in
place before a judiciary can be said to be independent?

Who is the judiciary accountable to? What is the judiciary accountable for?

Fundamental Questions
Does judicial accountability provide for adequate
guidance and supervision of judicial personnel?

Besides judges and other judicial staff, who else

plays a role in monitoring judicial performance?

What can be done in systems where judicial

corruption is a significant problem and judges do not appear to monitor or police themselves?

In Search of Guidelines on the Independence of the Judiciary

The United Nations Basic Principles on the
Independence of the Judiciary (UN General Assembly Resolution A/RES/40/32 of 1985) Intended as an international guideline on independence of judges and the selection, professional training and status of judges and prosecutors. A guide for UN member states within the framework national legislation and practice.

In Search of Guidelines on the Independence of the Judiciary

Under The Harare Commonwealth Declaration
1991 the Commonwealth is committed to eradication of totalitarianism democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government, inter alias and promoting international consensus on major global political, economic and social issues.

In Search of Guidelines on the Independence of the Judiciary

The Latimer House Guidelines for the
Commonwealth: Parliamentary Supremacy and Judicial Independence.

Independence of the Judiciary is a principle

and a fundamental political value worth advancing on a global scale alongside the strengthening of the rule of law.

Public awareness of the principle is important

for its effective implementation and observance.

The Latimer House Guidelines struggle for separation of powers

The legislative function is the primary responsibility of parliament as the elected body representing the people. Judges must be constructive and purposive in the interpretation of legislation, but must not usurp parliaments legislative function. Courts should have the power to declare legislation to be unconstitutional and of no legal effect. However, there may be circumstances where the appropriate remedy would be to declare the incompatibility of a statute with the Constitution, leaving it to the legislature to take remedial legislative measures.

The Latimer House Guidelinesstruggle for separation of powers

Judges should adopt a generous and purposive approach in interpreting a Bill of Rights. This is particularly important in countries which are in the process of building democratic traditions. Judges have a vital role to play in developing and maintaining a vibrant human rights environment throughout the Commonwealth

The Latimer House Guidelines struggle for separation of powers

While dialogue between the judiciary and the government may be desirable or appropriate, in no circumstances should such dialogue compromise judicial independence

The Latimer House Guidelines struggle for separation of powers

Judicial autonomy i.e. - independent appointments by a judicial service
commission or on advice of an independent commission - appointments should be permanent - security of tenure even if on contract - equality between men and women in appointments as well as regional and ethnic balances

The Latimer House Guidelines struggle for separation of powers

Funding the judiciary should be sufficient to
ensure - effectiveness and efficiency of judiciary to highest standards possible - appropriate salaries, supporting staff, resources and equipment - salaries and remuneration of judiciary staff to be set by independent commission - administration of monies allocated to judiciary should be under the control of the judiciary

The Latimer House Guidelines struggle for separation of powers

Training - necessary to develop culture of judicial
education - should be organised, systematic and ongoing under the judiciary - to teach law, judicial skills and the social context - necessary also for practising lawyers for their ongoing professional development and training and (better role in administration of justice)

The Latimer House Guidelinesstruggle for separation of powers

Judicial Ethics A Code of Ethics and Conduct should be
developed and adopted by each judiciary as a means of ensuring the accountability of judges A Model Code of Judicial Conduct should be finalised and adopted

The Latimer House Guidelines struggle for separation of powers

Judicial Accountability - Discipline
. No public admonition of judges and magistrates, admonitions in private by CJ . Removal should be by impartial and fair process with right to be heard & represented if necessary - Public Criticism . Legitimate public criticism of judicial performance ensures accountability . Criminal law and contempt proceedings not appropriate mechanisms for restricting legitimate criticism of the courts.