From the Editor’s Keyboard

Judicial impartiality and the politics of ethnicity

4 April 2020 at 17:53 | 789 views

By Dr. Hassan Sisay, Special Contributor, USA

In many countries, judicial impartiality is often staunchly advocated by the opposition party, and equally vigorously dismissed or ignored by the government. So, what is judicial impartiality? For the record, I am not a lawyer, but legal experts in general define it as the ability of judges to be fair and neutral to make decisions objectively without political intimidation or outside influence.

Given the intense social, political, ethnic and cultural divisions in nations such as Sierra Leone, is it possible for any judge to be absolutely fair, neutral and impartial? How does the judicial system deter government interference in its deliberations? Since judges are appointed, salaries paid, and serve at the pleasure of the government, would it be prudent or expected of the same judges to bite the hand that feeds them? Obviously, these are complex questions which are not only relevant to judicial independence, but also the context within which judges interpret the law, and maintain their administrative freedom to make judgement without fear of negative reprisals from any source.

Accordingly, the issue of judicial fairness and neutrality is so important that a short examination of its origin and practice is in order. Briefly, in most court buildings worldwide, there is an image of Themis, the Goddess of justice, blind folded, and holding a scale and a sword. As explained by the Honorable justice David Andrew of New South Wales Australia in a speech before a gathering of Chinese judges, the “blindfold represents impartiality, neutrality and …power that executes decisions without sympathy or compromise.” In a subsequent article on the same theme, Justice Andrew identified several issues which may interfere with a judge’s impartiality in decision making and contaminate the process such as “educational background, personal interests, religion, sexual orientation, political preferences…”
What’s the effect of judicial impartiality among judges in general and specifically in Sierra Leone? Is the matter of judicial impartiality an illusion? I am tempted to say yes, because Judges like most members of our society maintain ethnic experiences which often interfere with their judgements. In other words, judges are social creations molded and influenced by the environment they were born and raised in. Often, they are caught between what is right and what is needed to promote ethnic or political solidarity.

As humans we demonstrate impartiality daily in our various actions without ever acknowledging it. For example, we often prefer our children over other people’s children, show preferences within our own families for one child over another, or favor one brother or sister as opposed to other siblings. It is also not uncommon for people to make choices based on economic, social background, language, place of birth, gender, and religious distinctions. Our affiliations based on all or some of the above shape our judgments of how we view others, and why we feel they are different and deserve to be treated separately.

Assuming that eliminating all biases is almost impossible; I suggest we mitigate that prospect by including in our governmental structures effective measures which would increase and protect the independence of our judiciary. Judicial impartiality is a worldwide concern, and often a source of perpetual internal conflicts. For starters, it’s important for both incoming and outgoing administrations to work harmoniously for the common good of the country rather than continuously focus on the advancement of each other’s ethnic groups, personal friends or political parties. Notice how the moment there’s a change of government both APC and SLPP rush to fill up vacant positions with mostly the above, and then embark from day one to reverse the achievements of the previous administrations followed by the inevitable commissions of inquiry and subsequent imprisonment of political opponents. Surely, we can do better than this and thus minimize the unending political chicanery and recycling of perpetual ethnic hostility. Indeed, the country will benefit mightily if civil servants from the outgoing and incoming governments work towards a peaceful transition of administrations.

How about having judges appointed by the president as is currently being done, but confirmation and approval by a parliamentary committee including members of the judiciary. We could also have judges appointed by a Judicial council comprising lawyers of the Bar Association and members of the community at large, including religious groups, and women. Additionally, salaries of judges must be guaranteed by Parliament, and any increases made automatic without regular approval by either incoming or outgoing governments. Removal of judges from their positions must be limited to misbehavior or incapacity, and should include public hearings in which government representatives would be required to testify. A major problem for reform continues to be the reluctance of governments in power to participate or support calls for judicial reforms that might disadvantage them and their supporters. Human beings are social creations who are prone to self-preservation, and often ignore the clear consciousness of right. Regardless, we cannot continue the current political status quo which only leads to unending hostility and distrust among our people.