Albie Sachs, former South African judge, talks about his role in Kenyan judiciary reform (VIDEO)

Albie Sachs, a former judge of the Constitutional Court of South Africa who was active in the anti-apartheid movement before ascending to the bench, gave a lecture on the reform of the Kenyan judiciary on April 16 during his two-week visit to NYU Law as a Distinguished Global Fellow. A Q&A with Barry Friedman, Jacob D. Fuchsberg Professor of Law, and Sujit Choudhry, Cecelia Goetz Professor of Law, followed the lecture, which was sponsored by the Center for Constitutional Transitions and the African Law Association.

Albie SachsSachs, who was arrested and confined for his activism and later lost an arm and the sight in one eye as the result of an assassination attempt by South African security agents, has continued to work for legal reform since his retirement from the Constitutional Court, including as a member of Kenya’s Judges and Magistrates Vetting Board beginning in 2012. He recalled the riots that occurred in Kenya after a hotly contested presidential election in 2007 whose results many observers believe to have been manipulated. Following that fallout, Kenya adopted a new constitution and other reform measures, including the vetting board, which consists of three Kenyan lawyers, three Kenyan non-lawyers, and three foreign judges.

The perceived corruption of Kenya’s judges deeply disillusioned the populace, Sachs said. “The general population in Kenya was absolutely furious, livid with the judges—in some ways more angry with them than with all the other people they felt were failing, because you expect something different. You know that politicians can be crooked, you know that people run for office and bend the rules all the time, but you expect the judges to hold out.” So the Judges and Magistrates Vetting Board set out on the difficult task of determining which judges could be salvaged and which could not, based on the judges’ responses to complaints from the public, declarations of personal wealth, extensive questionnaires, and four representative opinions of their work on the bench.

The board began with the senior judge of the Court of Appeal (who, along with three of his colleagues on that court, was deemed unfit to continue in his position) and made its way down from there. “There was no precedent we could work with,” said Sachs. “We had to establish a modality. . . . I’d been sitting on the bench for a long time, but I’d never been judging judges. It’s a whole new experience and I found it emotionally quite difficult, intellectually very challenging, and grueling in many ways.” They interviewed judges for hours on end, and sometimes for several days, but also had to do their work swiftly. “It’s in the nature of transitional arrangements,” he said. “You have to get through quickly to be transitional. On the other hand, we had to respect natural justice and be fair.”

After describing some of the egregious manipulations of the law by some of the Kenyan judges who came before the board, Sachs discussed the March 2013 presidential election, the first since the controversial one in 2007, and thus freighted with tension and uncertainty. The victor’s share of the vote was just slightly more than enough to avoid a runoff, and the runner-up, the same one from the earlier election, went to Kenya’s Supreme Court but lost his case there—and accepted the court’s decision.

Sachs saw that acceptance as a promising sign. And if stability does take hold in the political system, and the new president truly respects the limits placed on him by the new constitution, he said, “Then the country really might prosper. Then some of the worst features—the assassinations, the thievery, the nepotism, the tribalism entering into everything—might become a thing of the past. It was an extraordinary experience for me, a very testing one.... I think the Kenyan model...will become the starting-off point for any courses that you might offer and for any other countries that might be envisaging similar processes.”

Watch the full video of the event (1 hr, 31 min):

Posted on May 7, 2013

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