BY SAM ALFAN.
Judges and Magistrates should be prosecuted if they commit criminal offences during the pendency of their work.
This prosecution can be done to guard against erosion of Judiciary independence.
“I am satisfied that a judicial officer cannot be held to be under any civil liability for actions done in the course of judicial duties provided they are done in good faith. However, the provisions of Section 6 of the Judicature Act and Article 60 (5) of the Constitution do not cover criminal liability,” Justice John Mativo ruled.
The justification for immunity of judicial officers, he said where it exists, cannot be to protect judicial officers from criminal prosecution but only from false accusations that are leveled against them in order to exert pressure on them.
He said that a contrary interpretation will have the inescapable effect of conferring an extra-constitutional immunity on judicial officers.
“Where an impropriety has been committed in the nature of criminal conduct which may include violations of the law, breach of court rules, abuse of office or interfering with the flow of justice, then, such immunity cannot stand,” The Judge pointed out.
Justice Mativo gave the Director of Criminal Prosecutions the greenlight to proceed with the seven-year old case against former Kisumu Principal Magistrate Abdulkadir El-Kindy and eight other people over the alleged fraudulent transfer of 9,394 acres of land worth Sh2.3billion belonging to Miwani Sugar Mills to a shell company known as Crossley Holdings Ltd.
El-Kindy, who had served as the Deputy Registrar of the High Court, had allegedly signed court documents related to a civil suit involving the property between May 21, 2007 and January 30, 2008.
The Judge said that the former magistrate, who was investigated by the Ethics and Anti-Corruption Commission (EACC), did not demonstrate that his right to fair trial had been compromised and that the police acted maliciously by instituting the charges of conspiracy to defraud and abuse of office.
“Clearly, Judges, like any other person, should be punished for any crimes they commit, be they general offences , for example causing a car accident in a state of drunkenness or specific crimes related to judicial functions like taking bribes or handing down favourable judgments or interfering with the administration of justice for which alone they swore to uphold.
Judicial officers are bound by the Constitution and the laws of the land and must live and uphold the spirit of the law.
It would be a sad day for the administration of justice if those charged with the responsibility of interpreting the law and upholding the rule of law are to be perceived as the ones breaking the law.
