Judicial Appointments Tainted, Threatening Rule of Law in a Wide Variety of Countries (3)

By Mathew Carr

Nov. 3 2023 — Judicial independence and bias is a surprisingly widespread problem in countries wealthy and poor, according to Babatunde Ajibade SAN, SPA Ajibade & Co, Lagos, Nigeria.

Judges being appointed feel they are beholden to the authority who appointed them, and that means judge’s decisions are not as unbiased as they should be, Ajibade said.

He was speaking at the final session of the International Bar Association conference in Paris, which concludes Friday. He’s Vice Chair / Treasurer of the IBA’s “Section on Public and Professional Interest”.

In Israel, a group of three judges can veto any judicial appointment and the voice of the people is not heard according to critics, said Gideon Fisher of Gideon Fisher & Co., speaking by video link.

In the US, judges are being appointed even though close to half of voters in the appointment process are not in favor, Deborah Enix-Ross, Debevoise & Plimpton LLP, New York, New York, USA; President / Chairperson, American Bar Association, told delegates.

The Biden administration is seeking ABA help when making appointments again …. after the Trump administration didn’t do that so much, Enix-Ross said.

Climate action requires climate justice first. A just society is best created by rule of law and an independent judiciary — one that’s not beholden to the executive arm of government.

In Kenya, the attorney general (part of the executive) is seen influencing appointment decisions.

In Uganda, the president effectively has a veto over appointments, said Esther Kitimbo Kisaakye, Supreme Court of Uganda, Kampala, Uganda. There are no criteria the president must use when making judicial-appointment decisions, she told delegates.

Kisaakye was retaliated against in multiple ways for making a dissenting decision in a judgement on elections, she said. She was assigned no new work since 2021, for instance; her salary was denied for two-and-a-half months.

Kennedy (left on the screen in the pic) and Kisaakye on the right

“It’s a wretched story,” said Baroness Helena Kennedy KC, IBA Human Rights Institute, London, England. Bars should be defending the right of a judge to write a dissenting view and it’s a “disgrace” when that does not happen, she told delegates.

In law, the bar is the legal profession as an institution. The term is a metonym for the line (or “bar”) that separates the parts of a courtroom reserved for spectators and those reserved for participants in a trial such as lawyers. (Wikipedia)

There were extraordinary interventions at the Paris event from some people apparently familiar with the situation in Nigeria, including allegations of bribes in the judicial system.

Kennedy said the IBA might consider releasing a statement on the need for judicial reform in the country.

Judges are sometimes appointed for life, which makes it more important that decisions are well made, said Jan Smit, Bingham Centre for the Rule of Law, London, England.

It’s generally very difficult to unseat a judge, he said.

(Updates with comments, photos; fixes garble in fifth paragraph)

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