Journal of the Commonwealth Magistrates’

and Judges’ Association

Vol 20 No 1 June 2012

21564 CMJA June Cover 20-1.qxd:Proof of cover 29/5/12 10:26 Page 2

COMMONWEALTH MAGISTRATES’AND JUDGES’ASSOCIATIONEstablished in 1970

Registered Charity (LTK) No. 800367 Company Limited by Guarantee Reg. No. 1942930

PATRONHer Majesty the Queen

PRESIDENTHer Honour Mrs Justice Norma Wade Miller

EXECUTIVE VICE-PRESIDENTJudge Tim Workman CBE

HON. TREASURERMr Paul G Norton JP

IMMEDIATE PAST PRESIDENTThe Honourable Chief Justice R.A Banda

LIFE VICE PRESIDENTSThe Hon. Magistrate David ArmatiLord Hope of Craighead, KT, PC The Hon. Justice Kipling Douglas

Mr Michael Lambert CBEThe Hon. Judge Sandra Oxner

Mrs Clover Thompson-Gordon JP

CARIBBEAN ATLANTIC & MEDITERRANEANREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENT Justice Richard Williams (Cayman Islands) Justice John Vertes (Canada)COUNCIL MEMBERS COUNCIL MEMBERS Mrs Faith Marshall-Harris (Barbados) Sheriff Michael Fletcher (Scotland)Justice Margaret Ramsay-Hale (Turks and Caicos) Mrs Anita St John Grey (England and Wales)

EAST, CENTRAL AND SOUTHERN AFRICA PACIFICREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTHis Hon. Bernard Luanda (Tanzania) The Hon. Robin Millhouse COUNCIL MEMBERS COUNCIL MEMBERSMrs Arida Chulu (Zambia) Mr John Lowndes (Australia)Chief Magistrate Matankiso M Nthunya (Lesotho) Her Hon. Judge Mary Beth Sharp (New Zealand)

INDIAN OCEAN WEST AFRICAREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTVacant VacantCOUNCIL MEMBERS COUNCIL MEMBERSHis Hon. Justice Markandey Katju (India) Mrs Ayodele O Odugbesan (Nigeria)Mr Nithiyanantham Murugesu KMN (Malaysia) His Hon. Judge Charles Adjei Wilson (Ghana)

CO-OPTED COUNCIL MEMBERSSheriff Douglas Allan OBE (Scotland)

His Hon. Justice Charles Mkandawire (SADC/Namibia)Mrs Olufolake Oshin (Nigeria)

Her Hon. Judge Leona Theron (South Africa)

DIRECTOR OF PROGRAMMES: District Judge Shamim Qureshi

SECRETARY GENERAL: Dr Karen Brewer EXECUTIVE ADMINISTRATOR: Temi Akinwotu

EDITOR OF COMMONWEALTH JUDICIAL JOURNALDr Aldo Zammit Borda

EDITORIAL BOARDDr Peter Slinn (Chairperson) Mr Akbar Khan Correspondents: Mr Christopher Rogers, Mrs Nicky Padfield Mr Geoffrey Care His Worship Dan Ogo

CMJA, Uganda House, 58-59 Trafalgar Square, London WC2N 5DX, U-K. Tel: +44 207 976 1007Fax: +44 207 976 2394 Email: info@cmja.org website: www.cmja.org

This journal is generously funded by Bloomsbury Professional

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Journal of theCommonwealth Magistrates’ andJudges’ Association

Vol 20 No 1 June 2012

1

COMMONWEALTHJUDICIALJOURNAL

CONTENTS

EDITORIAL 2

Profile Aldo Zammit Borda 4

Michael Todd Ethics and the Rule of Law 5

Amos Adeoye Idowu Constitutional Interpretation 12

Thomas S. Woods Vita Sackville-West: Poet, Novelist…and Magistrate 16

Benjamin J. Odoki The Role of the Chief Justice in Promoting andProtecting the Independence of the Judiciary 23

LAW REPORTS 29

Federation of Women Lawyers Kenya and Others v AttorneyGeneral and Another 29

British American Tobacco Australia Services Ltd v Laurie and Others 33

“Language, Learning and Law; these are themost precious heritage of the Commonwealth;but the greatest of these is Law.”

At the Commonwealth Legal Forum Lecture in2009 (18 CJJ (2010) 3 at 3), Shirdath (Sonny)Ramphal posited Law at the very heart of themodern Commonwealth of Nations. Whiletoday this result may appear evident, it was byno means inevitable. In his foreword to thehundredth volume of the Law Reports of theCommonwealth (LRC), Michael Kirbydescribed the defining moment, in the 1980s,when the process of colonial independence hadlargely run its course, when the idea of thePrivy Council had largely lost its attractivenessand when large numbers of judicial decisionswere being produced throughout theCommonwealth, potentially with little utilityand relevance to a readership beyond thenational boundaries affected by the rulings ofsuch courts. Kirby observed that “[a]t thismoment, it was possible that the law ofCommonwealth countries would just go itsown way, with no more than occasional,esoteric and academic interest in what washappening in courts of other Commonwealthcountries at about the same time” ([2009] 2LRC at iii).

Five considerations combined, according toKirby, to save the Commonwealth of Nationsfrom a totally destructive force of completelegal centrifugation. Amongst these were thenew initiatives which were taken “to sharelegal information amongst the worldwidefamily of independent courts and legalprofessionals.” The Commonwealth JudicialJournal (CJJ), which in 2013 will becelebrating its 40th anniversary, falls squarelywithin this category in view of its role insharing information amongst magistrates andjudges in the Commonwealth. Indeed, thejournal has been able to make a significantcontribution in this area thanks to the hardwork of a small number of people. Notableamongst them is my predecessor, ProfessorDavid McClean, whom I first met when Ijoined the Commonwealth Secretariat in 2007,whose dedication and incisiveness I haveadmired ever since and from whom I havelearnt a lot. Another person I would truly liketo thank is Judge David Pearl, who will soonbe retiring from the Editorial Board.

As the new editor of the CJJ, I intend to sharpenour focus on the changing needs andexpectations of magistrates and judges across the

Commonwealth. It is undoubted that the contexthas changed dramatically from when thepublication first came to light. Particularly withthe advent of the Internet, the journal today co-exists, and competes, in an ever more crowdedinformation marketplace. Nevertheless, thejournal’s core mission remains as importanttoday as it was when it was established.

Regular readers of the CJJ will have noticedthat we introduced some new features,including abstracts and keywords for allarticles which, we hope, will be found helpful.In order to continue to encourage submissionsof articles, book reviews and letters fromreaders, we will be including a standing “Callfor Papers” and submission guidelines at theback of each issue. Manuscripts forpublication in the CJJ should be sent,preferably by email, as a Word document, to:info@cmja.org. In this context, contributionsare particularly encouraged for the 40thAnniversary issue of the journal in 2013.Please refer to the submissions guidelines inthis volume for more information.

The 16th Triennial Conference of theCommonwealth Magistrates’ and Judges’Association (CMJA) will be held on the 10-15September 2012 at the Speke Resort andConference Centre, Munyonyo, Kampala,Uganda, with the theme “Justice for Everyone:Myth or Reality?” The programme is rich andvaried, covering a vast array of topics, includingjudicial independence, Latimer Houseprinciples, improving the efficiency and qualityof justice, technology in the court, tacklingatrocity crimes and the legacy of corruption. Inthis context, readers are invited to read thearticle on ‘Legal Pluralism: The UgandanExperience’, by the Chief Justice of Uganda,Benjamin J. Odoki (19 CJJ (2011) 2 at 14). Alink to the conference details and registrationinformation is available on the CMJA websiteat: http://www.cmja.org/cmja2012

In this issue of the CJJ, Michael Todd writes onEthics and the Rule of Law and addresses somequestions related to ethical standards andadvocates’ immunity. Amos Adeoye Idowudraws on the experience of the UnitedKingdom, Nigeria and the United States todiscuss modern approaches to Constitutionalinterpretation. Thomas S. Woods provides afascinating account of Vita Sackville-West’slittle known life as a justice of the peace and amagistrate. And Benjamin J. Odoki writes on

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EDITORIAL

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the role of the Chief Justice in promoting andprotecting the independence of the Judiciary.

The CJJ has once again collaborated with theLRC to publish the following two law reports:(1) a decision of the High Court of Kenyawhich dismissed a petition brought by theFederation of Women Lawyers Kenya andOthers relating to the appointment of a greaterproportion of female judges to the SupremeCourt; and (2) a decision of the High Court ofAustralia relating to the apprehension of biason the part of a judge in form of prejudgment.

In this respect, I would like to thank Dr PeterSlinn both in his capacity as chairperson of theEditorial Board of this journal and as general

editor, together with James S. Read, of theLRC for allowing us to publish these lawreports. I would also like to express myappreciation to Karen Brewer, the SecretaryGeneral of the CMJA, for her continuedsupport of the journal.

Finally, I would like to thank all those who,through the years, have supported the CJJ. Asthe new editor of this journal, I look forwardto interacting with our readers andcontributors through the pages of the CJJ. Iwould urge you to have a look at the Call forPapers at the back of this issue and to submityour articles and letters for publication.

The views expressed in the Journal are not necessarily the views of the Editorial Board orthe CMJA but reflect the views of individual contributors.

CALL FOR CONTRIBUTIONSHave you dealt with an issue/ a case which other members of the CMJA might find ofinterest?

Have you ever thought of writing a piece for the Journal on a topic close to your heart?

Have you spoken at a seminar/meeting recently and would like to share your presentationswith others in the CMJA?

Why not send us an article? The Editorial Board is seeking articles on issues affectingjudicial officers across the Commonwealth.

Contributions, ideally no more that 6,000 words should be sent to the Editor c/o the CMJA,Uganda House, 58-59 Trafalgar Square, London WC2N 5DX or by email: info@cmja.org.

LETTERS TO THE EDITORHave you an opinion about the articles we are publishing? Why not send us your feedbackin the form of a letter to the Editor?

SAD NEWSIt is with deep regret that we have to inform you that our Regional VicePresident for West Africa, His Hon. Justice Paul Evande Mwambo ofCameroon, passed away in mid-May. Paul Evande was first elected toCouncil in 2000 and was elected Regional Vice President in 2006. He wasa great supporter of the CMJA, its objectives and activities and one of thefounders of the Cameroon Association of Anglophone Judges.Conference delegates will recall his flamboyant character, dress sense andhis contributions during session discussions. He will be deeply missed byCouncil and CMJA members alike. We send our condolences to hisfamily and his colleagues in Cameroon.

Editor, Commonwealth Judicial JournalAldo completed his Doctorat of Law at theUniversity of Malta in 2003 on “The Threatand Use of Chemical and Biological Weaponsunder International Law”. He became aMaltese Advocate in 2004 and requalified as anEnglish solicitor in 2010. Aldo also holds aMasters in Economic Science in EuropeanEconomic and Public Affairs from UniversityCollege, Dublin and completed a PostgraduateDiploma in Contemporary Diplomacy at theUniversity of Malta in 2007. His first job wasin the Ministry of Foreign Affairs of Malta, asFirst Secretary where he worked until 2007. In2007 he joined the Commonwealth Secretariat’sLegal and Constitutional Affairs Division as theLegal Editor of the Commonwealth LawBulletin where he worked until November2010. He left the Commonwealth Secretariat tocontinue to pursue his second Doctorat atTrinity College Dublin. This time his topic is:“Judicial Decisions as Subsidiary Means for theDetermination of International Criminal Law”which he hopes to complete by September2012.

Aldo has also been a guest lecturer for TrinityCollege, Dublin, China University of PoliticalScient and Law, and at the Paris University ofInternational Affairs, Sciences- Po. He hadwritten a number of articles on the ICC (inrelation to decision making patterns and thetreatment of victims) and on the Ecologicalconsiderations relating to the Destruction ofChemical Weapons. He edited two books, oneon Legislative Drafting and the second onInternational Humanitarian Law and theInternational Red Cross and Red CrescentMovement in the Commonwealth. He is also aMember of the Editorial Review and Selection

Committee for the University of Dublin Journalof Postgraduate Studies and a Member of theIrish Society of International Law andEuropean Society of International Law. He isalso a Member of the Programmes Committeeof the Royal Commonwealth Society. Duringhis tenure at the Commonwealth Secretariat, hewas Treasurer and Vice Chairman of the YoungDiplomats in London Association.

Aldo has also attended and participated in anumber of conferences at the Commonwealthand International level and spoken on a varietyof topics from Teaching Law in the ModernGlobal Business Environment (CLEAConference Hong Kong) to Ireland and theInternational Court of Justice (Irish Society ofInternational and Comparative Law).

He has been a member of the Editorial Boardof the Commonwealth Judicial Journal since2010.

PROFILE

ALDO ZAMMIT BORDA

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Abstract: This article addresses some of theworrying trends, derived from both economicand political expediency, which lawyers mustguard against. It takes note of the soaring costsof dispute resolution and the associatedchallenges. It addresses the questions of ethicalstandards and advocates’ immunity. Itprovides examples, drawn mainly from thejurisdictions of England and Wales, ofregulatory frameworks put in place to addresssome of these concerns.

Keywords: Administration of justice –advocates’ duty to the Court – ethical standards– cab-rank rule – advocate’s immunity – publicconfidence in the legal system – regulatoryframeworks

The modern exposition of the Rule of Law isgenerally attributed to Professor AV Dicey,Vinerian Professor of English Law at Oxford,in his work “An introduction to the study ofthe Law of the Constitution” published in1885.

(1) No man is punishable or can lawfully bemade to suffer in body or goods except fora distinct breach of law established in theordinary legal manner before the ordinarycourts of the land

(2) Not only is no man above the law, butevery man, whatever be his rank orcondition, is subject to the ordinary law ofthe realm and amenable to the jurisdictionof the ordinary tribunals, and

(3) In England, the general principles of theconstitution (e.g. liberty, public meeting)are the result of judicial decisionsdetermining the rights of private persons inparticular cases brought before the courts.

Whilst Dicey’s exposition of the Rule of Lawhas been variously, and in some quarters,roundly, criticised, the core elements identifiedby Dicey have remained and are readilyidentifiable in later iterations of the Rule.

Thus, in his work “The Rule of Law”,published in 2010, the late Tom Bingham,former Master of the Rolls, Lord Chief Justiceof England & Wales and, latterly, Senior Law

Lord, expressed the Rule of Law in thefollowing way:

“The core of the existing principle is thatall persons and authorities within thestate, whether public or private, should bebound by and entitled to the benefit oflaws publicly made, taking effect(generally) in the future and publiclyadministered in the courts.”

He identified the following facets or elementsof that principle:

(1) The law must be accessible, intelligible,clear and predictable

(2) Questions of legal right and liability shouldordinarily be resolved by application of thelaw and not the exercise of discretion

(3) The laws of the land should apply equallyto all, save to the extent that objectivedifferences justify differentiation

(4) The law must afford adequate protectionof fundamental human rights

(5) Means must be provided for resolving,without prohibitive cost or inordinatedelay, bona fide civil disputes which theparties themselves are unable to resolve,and

(6) Adjudicative procedures provided by thestate should be fair.

In many, if not all, of all of those matters theadvocate has an essential role to play. But beforediscussing the role of the advocate, let meconsider the last of those elements, namely therequirement that “adjudicative proceduresprovided by the state should be fair”, because, ina sense, that is the framework within which theRule of Law, if it is to do so at all, must operate.

I will, of course, have to come back to the roleof the advocate in ensuring fairness as betweenthe parties. But that can amount to noughtunless the independence of the judicial decisionmakers is constitutionally guaranteed.

The independence of the Judiciary fromMinisters and of Government, from vestedinterests of any kind, from public andparliamentary opinion, from the media, frompolitical parties and from pressure groups, isfundamental to the Rule of Law. That is to say,

ETHICS AND THE RULE OF LAW

Michael Todd QC, Chairman, Bar Council of England & Wales.This article was extracted from a presentation originally delivered in Grand Court No. 1,Cayman Islands, March 2012.

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Judges must be independent of anybody oranything which might lead them to decideissues coming before them on anything otherthan the legal and factual merits of the case.

Inevitably that must extend beyond theinfluence which may be brought to bear bymatters such as tenure of office, promotion,and remuneration. It extends also beyond thedecision making process itself. It extends toacceptance of, support for, andimplementation of decisions made by thatindependent Judiciary.

Too often these days, decisions made by theCourts are held up to political or publicobloquy. Often undue criticism is made bylawyers outside of the Judicial process;decisions that is, involving a determination oflegal right and liability by application of thelaw, that is, according to the Rule of Law. TheRule of Law and the effective administration ofJustice require, and demand, that support andrespect be given to the Judiciary and to theJudicial Process, and that effect be given tothem.

Only the other day, Lord Neuberger MR, isreported, in the Daily Telegraph newspaper,dated 17 March 2012, to have said:

“It is quite inappropriate for politicianspublicly to criticise decisions of Judges or,even worse, Judges themselves inconnection with the performance of theJudicial function.”

He continued:

“If they slag each other off in public,members of the Judiciary and members ofthe other two branches of Governmentwill undermine each other, and, inevitably,the constitution of which they are all afundamental part, and on whichdemocracy, the Rule of Law, and ourwhole society rests.”

The Rule of Law cannot survive, let alonethrive, if the Judiciary, the Judicial decisionmaking process, or the decisions themselvesare undermined.

By the same token we must ensure that thedecision maker is impartial. Whilst a decisionmaker who is truly independent of allinfluences extraneous to the case to be decidedis likely to be impartial, he may nonetheless besubject to personal predilections or prejudiceswhich may pervert his judgment.

It was those sorts of concerns which lead to theestablishment in England & Wales of theJudicial Appointments Commission (JAC).

Appointments are now made on the basis ofrecommendations made by the JAC, whichwas established to replace the “Tap on theShoulder” system of Judicial appointments.Inevitably it came under fire, as any changewould; “After all what was wrong with the oldsystem?” The JAC, now has its secondChairman, and the system of Judicialappointments is now bedding down, and hasbecome the accepted mode of making JudicialAppointments.

Similarly, the Queen’s Counsel Appointments(QCA) Panel was established to advise andmake recommendations in relation to theappointment of Queen’s Counsel. Initially, thatmet with the same reaction as the JAC. But ittoo has become an accepted, if not particularlywell liked, system for appointments.

In both cases, such transparency in theselection process, albeit that it is long andlaborious, has served the legal system well.“Cronyism” is becoming, if has not alreadybecome, a thing of the past.

As Tom Bingham observed, in his seminalwork, “Scarcely less important than anindependent Judiciary is an independent legalprofession, fearless in its representation ofthose who cannot represent themselves,however unpopular or distasteful their casemay be.”

Thus we have the “cab rank rule”. In itspresent form it provides, amongst other things:

“Acceptance of instructions and the ‘Cab-rankrule’

601. A barrister who supplies advocacyservices must not withhold those services:

(a) On the ground that the nature of the case isobjectionable to him or to any section ofthe public

(b) On the ground that the conduct opinionsor beliefs of the prospective client areunacceptable to him or to any section ofthe public, and

(c) On any ground relating to the source ofany financial support which may properlybe given to the prospective client for theproceedings in question (for example, onthe ground that such support will beavailable as part of the Community LegalService or Criminal Defence Service).

602. A self-employed barrister must complywith the ‘Cab-rank rule’ and accordinglyexcept only as otherwise provided inparagraphs 603, 604, 605 and 606 he must inany field in which he professes to practise inrelation to work appropriate to his experience

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and seniority and irrespective of whether hisclient is paying privately or is publicly funded:

(a) Accept any brief to appear before a Courtin which he professes to practise

(b) Accept any instructions, and(c) Act for any person on whose behalf he is

instructed;

and do so irrespective of (i) the party onwhose behalf he is instructed (ii) thenature of the case and (iii) any belief oropinion which he may have formed as tothe character reputation cause conductguilt or innocence of that person.”

Those words of Tom Bingham, to which I havejust referred, bring to mind the judgment ofanother former Master of the Rolls, LordDenning MR, in Rondel v Worsley [1967] 1QB 443. I hope you may excuse me forrepeating them. He said:

“[The barrister] must accept the brief anddo all he honourably can on behalf of hisclient. I say ‘all he honourably can’ becausehis duty is not only to his client. He has aduty to the court which is paramount. It isa mistake to suppose that he is themouthpiece of his client to say what hewants: or his tool to do as he directs. He isnone of these things. He owes allegiance toa higher cause. It is the cause of truth andjustice. He must not consciously misstatethe facts. He must not knowingly concealthe truth. He must not unjustly make acharge of fraud, that is, without evidence tosupport it. He must produce all the relevantauthorities, even those that are against him.He must see that his client discloses, ifordered, the relevant documents, even thosethat are fated to his case. He must disregardthe most specific instructions of his client ifthey conflict with his duty to the court. Thecode which requires a barrister to do all thisis not a code of law. It is a code of honour.”

Moving stuff! They don’t write them like thatthese days! Well, it is easy to scoff, but I wouldask you to pause for a moment, and look atwhat Lord Denning was saying.

(1) The barrister must accept the brief – thecab rank rule

(2) He has a duty to his client(3) But his paramount duty is to the Court(4) He is not simply the mouthpiece for his

Client, indeed he must disregard hisClient’s specific instructions if they conflictwith his duty to the Court

(5) He owes his allegiance to the cause of truthand justice; thus he may not knowinglymisstate the facts or conceal the truth

(6) He must not without sufficient evidence toenable him to do so, make a charge offraud

(7) He must bring to the Court’s attention allrelevant authorities, both for and againsthim, and

(8) He must ensure that all documents aredisclosed so the Court has a full, and notmerely a partial picture.

As I have said, moving stuff from the formerMaster of the Rolls; but who amongst thisaudience would dare gainsay that those are theduties of the advocate? I apprehend that no-one would.

Indeed those duties are now enshrined in theCode of Conduct of the Bar of England andWales, which provides, amongst other things:

“Applicable to all barristers

301. A barrister must have regard toparagraph 104 and must not:

(a) Engage in conduct whether in pursuit of hisprofession or otherwise which is:

(i) Dishonest or otherwise discreditable to abarrister

(ii) Prejudicial to the administration of justice,or

(iii) Likely to diminish public confidence in thelegal profession or the administration ofjustice or otherwise bring the legalprofession into disrepute.

(b Engage directly or indirectly in anyoccupation if his association with thatoccupation may adversely affect thereputation of the Bar or in the case of apractising barrister prejudice his ability toattend properly to his practice.

Applicable to practising barristers

302. A barrister has an overriding duty to theCourt to act with independence in the interestsof justice: he must assist the Court in theadministration of justice and must not deceiveor knowingly or recklessly mislead the Court.

303. A barrister:

(a) Must promote and protect fearlessly and by allproper and lawful means the lay client’s bestinterests and do so without regard to his owninterests or to any consequences to himself orto any other person (including any colleague,professional client or other intermediary oranother barrister, the barrister’s employer orany Authorised Body of which the barristermay be an owner or manager)

(b) Owes his primary duty as between the layclient and any other person to the lay client

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and must not permit any other person tolimit his discretion as to how the interestsof the lay client can best be served, and

(c) When supplying legal services funded by theLegal Services Commission as part of theCommunity Legal Service or the CriminalDefence Service owes his primary duty tothe lay client subject only to compliancewith paragraph 304.”

Rondel v Worsley, as this audience will know,involved the issue of a barrister’s immunityfrom suit in relation to advocacy. 13 yearslater, a barrister’s immunity in relation toadvice tendered outside of Court proceedingswas removed by the House of Lords, in Saif Aliv Sydney Mitchell & Co [1980] AC 198.

Some 20 years after that, in Arthur J S Hall vSimons [2002] 1 AC 615, the House of Lordshad to consider, once again, the question of anadvocate’s immunity from suit in relation tohis conduct in Court. The Judge at firstinstance had struck out the proceedings. TheCourt of Appeal, the President of which wasone Lord Bingham of Cornhill LCJ, overturnedthat decision. In the House of Lords, a numberof matters were relied upon in support ofcontinuing the immunity, including theexistence of the advocate’s primary andparamount duty to the Court (the case in factinvolved solicitors firms not barristers.) Ingiving the leading speech, removing theimmunity, whilst in no way, undermining,questioning or doubting the existence of thisparamount duty, Lord Steyn posed the criticalissue as being whether or not immunity wasrequired to ensure that nothing wouldundermine the advocate’s overriding duty tothe Court. He concluded that the legalprofession did not need that immunity. Heexplained:

“Most importantly, public confidence inthe legal system is not enhanced by theexistence of the immunity. The appearanceis created that the law singles out its ownfor protection no matter how flagrant thebreach of the barrister. The world haschanged since 1967. The practice of lawhas become more commercialised:barristers may now advertise. They maynow enter into contracts for legal serviceswith their professional clients. They arenow obliged to carry insurance. On theother hand, today we live in a consumeristsociety in which people have a muchgreater awareness of their rights. If theyhave suffered a wrong as a result of theprovision of negligent professionalservices, they expect to have the right to

claim redress. It tends to erode confidencein the legal system if advocates, aloneamong professional men, are immunefrom liability for negligence.”

Most aptly, for the purposes of this address atleast, it is noteworthy that Lord Steyn’sprincipal concern was “public confidence inthe legal system”. And it is in maintaining thatconfidence that the advocate has a primaryrole.

I have talked, by reference to Rondel vWorsley, about the duty of the advocate inrelation, amongst other things, to disclosure ofdocuments. That same duty is owed by asolicitor.

In Myers v Elman [1940] AC 282, the Houseof Lords was concerned with the duty of asolicitor who learnt that his client had perjuredhimself in an affidavit relating to discovery.Upon learning of the falsity of the affidavit, thesolicitor is under a duty to inform the otherside’s solicitor of the falsity, and if his Clientdeclines to permit him to do so, he must ceaseto act. If the false affidavit has already beendeployed in the proceedings, the solicitor mustensure that the matter has been put right bymeans of a corrective affidavit and that theother side is informed, or, again, he must ceaseto act. As Viscount Maugham succinctly put it:

“A solicitor who has innocently put on thefile an affidavit by his client which he hassubsequently discovered to be certainlyfalse owes it to the Court to put the matterright at the earliest date if he continues toact as solicitor upon the record. The dutyof the client is equally plain.”

The integrity of Judges, it hardly needs to besaid, is essential in maintaining confidence inthe Judicial system. But so too is the integrityof practitioners before the Courts. That, as wehave seen is reflected in the extracts from theCode of Conduct of the Bar of England &Wales to which I have already referred.

An advocate’s role in our common law system,whether or not set out in a written Code ofConduct, is to support the Judicial process,because it is through that process that the Ruleof Law is maintained. Such a Code must,where necessary be vigorously, and rigorously,enforced.

Fearlessly, advocates will defend a person’shuman rights, however egregious the crime ofwhich he is charged, however unpopular thecause, however distasteful the client, or his views.

However, their ability to do so necessarilydepends on “accessibility”.

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Commentators speak of “accessibility” inmany contexts:

(1) Accessibility, that is, to the profession (anenormously important subject in England& Wales in terms of diversity (gender,ethnicity and social mobility)); a subjectupon which I would welcome furtherdiscussion with different jurisdictions, butit is not really the subject matter of thisaddress

(2) Accessibility in terms of intelligibility,clarity and predictability of the law

a. As Tom Bingham pointed out, this isabsolutely essential. The successful conductof trade, investment and business generallyis promoted by a body of accessible legalrules governing commercial rights andobligations

b. As long ago as the 18th Century, LordMansfield (considered by many to be thefather of English commercial law)recognised this when he said, in Vallejo vWheeler (1774) 1 Cowp 143, 153: “In allmercantile transactions the great objectshould be certainty: and therefore, it is ofmore consequence that a rule should becertain, than whether the rule is establishedone way or the other. Because (investorsand businessmen) then know what groundto go upon”

c. Indeed, no one would choose to dobusiness, perhaps involving large sums ofmoney, in a country in which the parties’rights and obligations are vague orundecided. A testament to that is thelitigation, conducted in the newly openedRolls Building in London, between theRussian Oligarchs. The dispute has reallyno connection with London, but thereputation for integrity, fairness andcertainty of the English legal system, itsadherence to the Rule of Law, itsaccessibility are such that those Oligarchschose to have their dispute determined inLondon

d. As Tom Bingham said, the Rule of Law notonly “embodies and encourages a justsociety, but also is a cause of other goodthings, notably growth”

e. Thus, certainty and accessibility serve notonly a “higher” purpose, but also acommercial purpose, and

f. This is the subject matter of a talk on itsown.

(3) Thirdly, accessibility is spoken about interms of access to Justice; and it is here thatthe advocate’s role is again indispensable.

When parties are otherwise unable to resolvetheir disputes by some alternative disputeresolution procedure, such as mediation orarbitration, then the Rule of Law requires thatthere should be access to a Court. The meansto resolve disputes must be provided for,without prohibitive cost or inordinate delay.

Expense and delay are often two obstacles tosuch access to Justice. Whilst our concernsabout these two issues may endure relentlessly,attempts to remedy the expense of litigationappear to be almost cyclical.

In 2000 Lord Woolf introduced his reforms tomake more accessible Court procedures. Wemoved from the Rules of the Supreme Court1965 (RSC) to the Civil Procedure Rules(CPR), almost seamlessly, overnight. But it wasnot long before the volume and density of theCPR exceeded, and trumped, those of the RSC.Well intentioned though they may have been,the Woolf Reforms increased the costs oflitigation, by, amongst other things, “frontloading” those costs, as Lord Neubergerobserved, in his recent speech on “docketing”,which he gave to the Solicitors’ CostsConference last month.

More recently, in England & Wales, in a yetfurther attempt to improve access to Justice,Jackson LJ reviewed and reported on the Costsof Civil Litigation. He is presently responsiblefor the implementation of the reforms heproposed.

Following a speech given, last year at theoffices of Clifford Chance in London, by theLord Chancellor, Ken Clarke MP, in which hesang the praises of the Commercial andChancery Bars of England and Wales, a panelof financial experts, bankers, analystsaccountants, and the like, were asked whatthey wanted from a legal system. To a man(and woman) they all replied: first costeffective dispute resolution; and second speedydispute resolution.

That should provide a commercial imperative.And indeed, I have set up a working group ofthe Bar Council to look at means of improvingthe speed of delivery of dispute resolution. Inthat endeavor, I have discussed those matterswith, and gained the support of, the seniorJudiciary in England.

Unsurprising perhaps; after all, it is often saidthat “justice delayed, is justice denied.”

As recently as 19 March 2012, it was reportedin the London Press that the litigation betweenBaron Thyssen and his son had settled, withlegal fees amounting to some US$100m. You

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may remember that in 2000 the case, in theBermuda Courts, had, somewhat notoriously,been opened for 66 days.

Clearly the sums involved, and I do not meanjust the lawyer’s fees, were enormous (US$2.7bn). But what does this say about access tojustice?

What price justice? What price access tojustice? Is this a justice system we want?

We all, Government, the Judiciary and legalpractitioners, have a duty to ensure effectiveaccess to justice, in the legal system we provideand in our management of litigation before ourCourts.

It is one thing to talk about these principles, ofour ethical standards, of access to justice, ofthe Rule of Law, but what do they mean inpractice.

Let me give you just two issues with which weare currently wrestling in England.

First, as you probably all know, in England andWales, the regulatory landscape under whichwe now practise has changed fundamentally asa result of the Legal Services Act 2007.Anticipating the change, whilst still acting asthe Approved Regulator, the Bar Councildevolved its regulatory responsibilities to theindependent Bar Standards Board (BSB). It isnow the BSB which oversees and enforces theCode of Conduct, handling complaints againstbarristers and taking primary responsibility foreducation and training, alongside theimportant role played, of course, by the Inns ofCourt. In turn, the BSB is scrutinised by theLegal Services Board, the oversight regulator.There is also a Legal Ombudsman, who dealswith consumer complaints.

You will therefore readily appreciate that, inEngland and Wales we are operating in anenvironment where clients have becomeconsumers, and, it would seem, “the consumeris king.”

Indeed, speaking at the Bar Council’s AnnualConference in 2010, the Master of the Rolls,Lord Neuberger, warned that whilst animportant factor, consumerism was not theonly, or indeed the most important factor. “Itis of fundamental importance”, he said “that,particularly when it comes to the professions,above all to the legal profession, society doesnot adopt what might be called a form ofunreflective consumer fundamentalism.”

Second, our new regulators are planning toassess the advocacy services we provide. Theyare proposing to introduce a system of Quality

Assurance for Advocates (QASA). It wasproposed that such a scheme be rolled out forcriminal advocates from 1 April of this year.However, disagreements as to the scope andrigour of such a scheme have resulted indelays. The concerns are that the system willnot demand the standards of excellence whichthe justice system require if proper andeffective access to justice is to be afforded butwill be content with some lowest commondenominator of competence. Our justicesystems, access to justice, the Rule of Law,demand, and require, excellence from ouradvocates.

It is true that we face some difficult challenges,but that simply means we should be morerigorous about the observance of ourprofessional and ethical standards.

For example, consider those English barristerswho appear before courts and tribunals allaround the world. They are, in truth,ambassadors for our profession and for theEnglish Bar. They must adhere to our Code ofConduct. But they must do more. They mustalso observe the ethical and professionalstandards of the Bar to which they must beCalled in order to enable them to practise inthat other jurisdiction. The Bar Council hasrecently issued further guidance in relation tothis. It is not a question of picking andchoosing. It is not a free for all. We have toensure that we maintain the highest standards.We cannot afford to compromise.

When I delivered my inaugural address to BarCouncil last December I had one (I hope) clearand prevailing message; invest in the future. Bythat I was not referring to spending money wesimply do not have, mortgaging our future fortoday’s expedients. I was talking ofmarshalling our resources; to invest ouravailable resources wisely to produce thegreatest returns; to invest more strategically,more intelligently and more transparently.

Recently, in England, we celebrated theopening of Rolls Building, the new businessand property court complex, housing theJudicial expertise of the Chancery Division, theCommercial and Admiralty Courts, and theTechnology and Construction Court. In thatrespect, we have been investing in our future.But it is not just about operating from modern,purpose-built courts. It is about investment inthe justice system, and in the services provided.It is also about investment in those whoprovide those services.

If we want justice systems which are the envyof the world, which attract inward investment

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and instil confidence in those looking to dobusiness in our respective jurisdictions, andwhich command respect, we must make thatinvestment in access to justice, in the Rule ofLaw. A jurisdiction which does not exude its

support for the Rule of Law, its investment inthe quality and integrity of its Judicial system,of its Judiciary, and of its legal practitioners,cannot, and will not, prosper.

DOROTHY WINTON TRAVEL BURSARIES FUND

WE NEED YOURDONATIONS!

This fund was set up in the name of the first Secretary of theAssociation who died in October 2003. Dorothy’s time as the firstSecretary of the Association was a very happy one and she was veryconcerned that justice (and support for justices) should be available topoor and rich nations alike.

“She had considerable knowledge of the Commonwealth, a genuineinterest in its people and she was prepared to travel extensively topromote the Association, being especially concerned that people fromthe less well developed countries should be able to play a full part.”Stated Brenda Hindley, former Editor of the CJJ.

The Fund was used to assist participation of three magistrates fromMalawi, Uganda and the Solomon Islands at the CMJA’s 14th TriennialConference and will be used to used to assist participation of judicialofficers who would not otherwise have the opportunity to benefit fromthe training opportunity offered by the educational programme of theTriennial Conferences of the Association.

We WELCOME ALL CONTRIBUTIONS to the Bursary fund.Contributions should be (by cheques drawn on a UK bank, banktransfers – making clear what the transfer is related to or bankers draftmade payable to CMJA) and should be sent to the

Commonwealth Magistrates and Judges Association atUganda House58-59 Trafalgar SquareLondon WC2N 5DX, UK.

Please remember that as a registered charity, the CMJA can reclaim taxpaid by UK tax payers. If you include your name and address (e.g. on theback of the cheque), we can send you the form to fill in for gift aid purposes– a simple declaration and signature.

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Abstract: This article examines some of theapproaches to Constitutional interpretationapplied by judges and magistrates across theCommonwealth. It first explores theapplication of the literal rule of interpretation.It proceeds to examine liberal approaches tothe construction of the Constitution, especiallyas propounded by US courts as well asCommonwealth courts, such as the SupremeCourt of Nigeria. It observes that clausesintended to protect fundamental rights are tobe accorded a liberal construction. It concludesby offering some guidance to Constitutionalinterpretation for Commonwealth judges andmagistrates.

Keywords: Interpretation – construction –literal rule – absurdity – liberal approaches –superfluous words – intent of the drafters

IntroductionThe main objective of this article is to examinecertain principles which have been recognizedas providing guidance to judges andmagistrates of the Commonwealth in theirduties of ensuring effective constitutionalinterpretation, with a view to furtheradvancing justice, equity and fairness.

British/Commonwealth JudicialTraditionIn his article, ‘The Interpretation of Codes inBritish India’, Madras Law Journal (1935) 67at 69, V. Fitzgerald asserted that the literal ruleis an offshoot of Parliamentary sovereigntyand classical doctrine of separation of powers.The courts are not to tinker with what theParliament has said, as the Parliament isconcerned with jus dare (law-making), and notjus dicere (saying what the law is orinterpreting the law). According to J. Kilgour,since the courts are often unable to pierce theveil of Parliament, to discover the history oflegislation, the traditional approach is to stickto the words, to which in any event, they hadto ascribe meaning (see ‘The Rule Against theUse of Legislative History: Canon ofConstruction or Counsel of Caution’,Canadian Bar Review (1952) vol. 30 at 782).While emphasizing the literal tradition of theEnglish judges to statutory interpretation,another British author, P. J. Langan, in his

Maxwell on Interpretation of Statutes (1968),at 28 stated:

“The court is not to enter into any enquirywhether the ordinary meaning would beproductive of hardship or injustice. Thelegislature has said what it means and meanswhat it has said… where the language isclear and unequivocal, it must be enforcedhowever harsh or absurd or contrary tocommon sense that result may be.”

In fact, the learned writer of Craies on StatuteLaw (1951), S. G. D. Edger; regarded literalconstruction of statues as the cardinal rule ofinterpretation.

There are litanies of cases in British archivesand in law reports of other Commonwealthnations where judges have affirmed literalapproach to statutory and constitutionalinterpretations. A classical application ofliteral approach was demonstrated inLiversidge v. Anderson (1942) 6, A. C at 206,where the phrase “if the Secretary of States,has reasonable cause to believe” caused adivision in the House of Lords. The majoritywere of the opinion that the phrase wasambiguous because it could mean either thatthe Secretary of State had reasonable cause tobelieve or that the Secretary of State thoughtthat he had reasonable cause to believe. Theminority held that the phrase was plain enoughand it could only mean “if the Secretary ofState has reasonable cause to believe”.

In Hill v. East and West India Government(1984) 9 A. C. at 448, Lord Bramwell wasinclined towards the literal approach when heheld that:

“It is infinitely better to adhere to thewords of an act of Parliament and leavelegislature to set it right than to alter thosewords according to one’s notion of anabsurdity…”

Lord Bramwell was only agreeing with hislearned brother, Jervis, C.J., who had earlierdecided in Abley .v. Dole (1851) 11 Q.B 378 at391 that:

“If the precise words used are plain andunambiguous in our judgement, we arebound to construe them in their ordinary

CONSTITUTIONAL INTERPRETATION

Dr. Amos Adeoye Idowu, Acting Head, Department of Public Law, Faculty of Law, ObafemiAwolowo University, Ile-Ife, Osun State, Nigeria.

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sense, even though it does lead, in ourview of the case, to an absurdity ormanifest injustice…”

In Kenyon v. Eastwood (1988) 571 J.Q. B at455, an English court had also given a literalinterpretation of the phrase “order made inopen court” not to include an order made inthe room next to it, which was also open to thepublic. Owing to the importance attached tothe literal approach, courts in England andtheir counterparts in other Commonwealthnations are not inclined to sympathize with thelegislature even where there is an omission in astatute. Doing so, according to Lord Guest inL. R. C .v. Rennel (1964) 18 AC at 173, wouldamount to a “judicial paraphrase”. In Nigeria,a classical illustration of the literal approachwas demonstrated by the Supreme Court inObafemi Awolowo v. Shehu Shagari (1979) 6 -9 S. C at 51, where the phrase “Two thirds ofnineteen States of the Federation” wasinterpreted to be exactly “twelve and two-thirds” instead of rounding it up to thirteenStates. Commenting on the decision of theSupreme Court of Nigeria in ‘Judicial Activismor Passivity in Interpreting the NigerianConstitution’, International Law Quarterly(1987), vol. 36 at 803, B. O. Okeke said:

“Awolowo v. Shagari is a remarkable, ifunusual, example of literalism ormechanistic interpretation serving theneeds of political expediency”.

Even in the United States of America, wherecourts have been noted for their liberalinterpretation, literalism or strictinterpretation of laws has not been completelydiscarded. According to F. Frankurter, J., in‘Some Reflections in the Reading of Statutes’,Columbia Law Review (1974) vol. 47 at 530,the role of the judge is to ascertain the meaningof the word and he is neither to rewrite it norto enlarge it. The court is simply a translatorof the legislative command. In the same vein,Cardozo, J. ‘The Nature of Judicial Process’(1973), New York, at 28 observed:

“We do not pause to consider whether astatute differently conceived and framedwould yield results more consonant withfairness and reasons. We take this statuteas we find it”.

As the above cited cases illustrate, the literalapproach has been firmly embedded in theCommonwealth judicial culture. However,there has also been a growing desire for newapproaches, which extend the frontiers ofliteral interpretation to liberalism, rationalism,

activism, logicalism, aestheticism andinterpretivism in constitutional adjudication.

Modern Ideas to Judicial Interpretationof the ConstitutionThis article will discuss, in particular, twomodern ideas relating to judicial approaches tothe interpretation of the Constitution. In hisbook entitled Constitutional Construction(1982), at 66 and 236, C. J., Antieaupropounded one of these ideas, namely, that aConstitution should be interpreted in the sameway as an ordinary statute. The decision in thecase of United States v. Classic (1941) 313 US299, propounded the other, opposite idea,namely, that a Constitution is a uniquedocument which deserved a liberal judicialapproach and so, should not be interpreted inthe same way as ordinary statutes.

C. J. Antieau however, eventually came to theconclusion that a Constitution is indeed aunique document which, unlike ordinarystatutes, should be placed on a higher pedestaland so, deserved a liberal approach. Thisposition is now recognized as a feature ofAmerican jurisprudence. On severaloccasions, American judges have repudiated anarrow construction of constitutional termsand clauses, preferring instead a broad andliberal construction. For instance, in UnitedStates v. Smith (DDC 1946) 68 at 739, aColumbia District Court held:

“As the Constitution is a permanent andenduring document, it must be broadlyconstrued in order to be adjustable tochanging conditions”.

Judges who believe that a Constitution shouldnot be interpreted like ordinary statutes furtherargued that the interpretation of aConstitution should be more a matter ofconstruction, rather than mere interpretation.In cases like State v. O’Brien (DDC 1967) 272at 716 and Charron v. Gert of the USA [2000]1 WLR 1793, the courts decided thatadjudication requires “construction” of thefundamental law. The term “construction” isof broader scope than “interpretation”.Construction embraces “interpretation”. Inone of his books, Statutory Construction(1972), at 15, M. Sutherland expressed theview that countries having writtenConstitutions must, because of the breath oflanguage customarily used in the documents,concern themselves with construction ratherthan interpretation. According to him, theterm “construction” is used to embrace boththe task of ascertaining the meaning of wordsemployed by those responsible for the

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Constitutions, and the far larger and moreimportant duty of assigning the appropriatelegal significance to clauses and words used inthe basic law.

A retired justice of the Supreme Court of Nigeria,Hon. Kayode Eso (CON) affirmed in his book,Thoughts on Law and Jurisprudence (1991), at32, that the idea of a liberal interpretation isbased on the following principles or canons ofconstitutional construction:

1. In Constitutions, words are ordinarily giventheir normal and ordinary senses, and are notusually construed in technical senses. Inlooking for the common and ordinary meaningof words used in a Constitution, courts have attimes, referred to the definition of the words indictionaries circulating when the provision wasadopted, as happened in cases such as State exrel Sandforth v. Cason (MO 1974) 507; R. V.Street Magistrate [2000] 1 AC 119; A. V.Home Secretary [2005] 3 All ER 169 etc.

In judicial pronouncements in cases likeEpping v. City of Columbus (1913) 117 G.A,at 263, and Higgins v. Cardinal Mig. Co.(1961) 188 Kan. 11, the courts have indicatedthat, the literal, dictionary meanings of wordshad to remain subordinated to the clearlyevident intent of the people in adopting aConstitution. Therefore, non-technical wordsare not ordinarily to be given technicalconstructions. The Constitution is not to beconstrued in a technical manner and, beforethe words can be given a purely technicalmeaning, different from their popularmeaning, the intention that they should be sounderstood must have been plainly manifest.

2. Constitutional language is to be given areasonable construction and absurdconsequences are to be avoided. Virtually,since the adoption of the United StatesConstitution, courts and judges have alwaysagreed to this approach. In Martin v. Hunter’sLesses (1816) 14 US 1 Wheat at 304, onJustice Story said:

“This instrument…is to have a reasonableconstruction… the words are to be takenin their natural and obvious sense, and notin a sense unreasonably restricted orenlarged”.

In the same vein, Justice Strong had held inWoodson v. Murdock (1824) 89 US (229 Wall)at 361: “Every clause in every Constitutionmust have a reasonable interpretation”.

Another dimension to the issue of adopting areasonable interpretation to constitutionalprovisions could be gathered from John Ely in

his book, Democracy and Distrust (1980), at60, that, if a constitutional provision issusceptible to two constructions, one of whichis workable and fair, and another unworkableand unjust, courts must assume that the peopleresponsible for the language intended theworkable and fair construction.

3. A Constitution is to be read, if possible, sothat every word, phrase, clause and sentence isgiven effect, and none of these is to be renderedsurplus, superfluous, meaningless or nugatory.See Hamillon v. Autauga County (1972) 289ALR 419.

Similarly, in Williams v. United States (1933)289 US 553, the American Supreme Court hadonce held that it is the elementary canon ofconstruction that every word in theConstitution is to be given effect.

4. Judges had held in cases such as Gorpalan v.State of Madras (1950) AIR 27 at 35 and Statev. Leong (1970) 51 Hawaii at 581, that clausesintended to protect fundamental rights areespecially to be accorded a liberalconstruction. This approach means that courtswill give especially broad, liberal constructionto those constitutional provisions designed tosafeguard fundamental rights such as the rightsto life, liberty and property.

As far back as 1946, in the case of UnitedStates v. Commanding Sonny (1946) 69, FSupp. at 665, a Federal Court in America alsocharacterized as the most pressing rule forconstitutional construction: “that theprovisions for the protection of life, liberty andproperty are to be largely and liberallyconstrued in favour of the citizen”.

In 1885, in a case involving construction of theFourth and Fifth Amendments, Justice Bradley,speaking for the United States Supreme Court,pronounced that in general, the High Courtshould adhere to the rule that Constitutionalprovisions for the security of person andproperty should be liberally construed, since aclose and literal construction would deprivethem of their efficacy and would lead to thegradual depreciation of fundamental rights.

5. Exceptions are to be narrowly construed andordinarily limited to their immediateantecedents. The word “exceptions” here refersto the exclusory provisions of the constitutionwhich subject, for example, the exercise of acitizen’s right to some kind of restriction.Exceptions are common in the Constitutions ofmany Commonwealth nations, like section 45of the Constitution of the Federal Republic ofNigeria 1999, which subjects the exercise ofsome rights to any law that is reasonably

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justifiable in a democratic society. Suchexclusory provisions are to be interpreted in away to confine them to the immediatecircumstances prevailing before they were putin the Constitution. (See in re-Opinion of theJustices (1934) 286 Mass at 661).

6. In construing a particular provision, thegeneral purpose and objects of theConstitution are to be kept in mind. Thismeans that a court is to be guided by the greatpurposes of the Constitutional scheme ofgovernment. In Virginia v. Tennesse (1893)148 US 503, the United States Supreme Courthad said that it is beyond question that wheninvestigating the nature and extent of thepowers conferred by the Constitution uponCongress, it is indispensable to keep in view,the objects for which those powers weregranted. The court added:

“If the general purpose of the instrument isascertained, the language of its provisionsmust be construed with reference to thatpurpose so as to subserve it. In no otherway can the intent of the framers of theinstrument be discovered…”

7. One other fundamental guide to theinterpretation of the Constitution, which hadbeen laid down over the years by Marshall CJin Ogden. V. Saunders (1827) 25 US 12, at213, is that courts must interpret any provisionaccording to the intent of the drafters.

However, opinions are divided on this approachto Constitutional interpretation. Some juristshave argued that, as in the Law of Evidence,where intention is difficult to prove and islikened to the state of a man’s digestion whicheven the devil does not know, drafters’ intentioncan only be inferred. They maintained that thesearch for intention is elusive and reference tothe term “drafters” intent is superfluous. Forinstance, a Judge of the Supreme Court ofNigeria, Akunne Oputa, said in one of hisPublic lectures entitled, “The Law, the Potencyand Majesty words” at Ogun State University,Abeokuta, Nigeria (1989), that: “Nobody hadever seen intention on a walk. Nobody knowsthe latitude or longitude of an intention”.

The preponderance of opinion then is that forthe purposes of interpretation, the intention ofthe drafters does not signify what the draftersmeant to say, but what the meaning of thewords employed by the drafters is. A lawcourt must find out the expressed intention ofthe drafters from the words of the Constitutionitself. This rule also applies to statutoryinterpretation. (See Salomon v. Salomon,(1879) AC 22 at 381).

Conclusion – Observations andRecommendationsArising from the foregoing ideas and principlesconcerning Constitutional interpretation, thefollowing deductions may be arrived at, as apossible guide for Commonwealth Judges andMagistrates, in constitutional adjudication:

1. Constitutional theory must respect theplain meaning of explicit Constitutionallanguage.

2. Semantics does not exhaust interpretation;interpretation must appeal to theunderlying purpose of the Constitution.

3. Beliefs about the meaning and references ofconstitutional language must be justified byappeal to the best available conceptionsand theories about the real nature of therelative institutions which the languagetalks about.

4. Constitutional interpretation must respectthe specific intention of the framers. Theproblem here is how to determine theintention of framers who are no longeralive. Can framers be said to have anintention with respect to a situation whichthey did not foresee or could not haveenvisaged? How do we deal withconflicting intentions?

5. Constitutional interpretation must reckonwith moral and political theories whoseinclusions the framers would not haveendorsed. This principle seesConstitutional interpretation as wider thana semantic exercise. The court can, andmust, rely on substantive moral andpolitical theories in interpreting andapplying the Constitution.

Above all, effective interpretation of theprovisions of the Constitution in general bycourts of law depends, to a large extent, on thewillingness of all citizens to allow theConstitution to work and flourish. As Guntherrightly observed, in ‘The Constitution ofGhana: An American’s Impressions andComparisons’, 2 Legon Journal (1971), at 11:

“…making a Constitution work is adifficult, subtle, complex process whichcannot be achieved by courts alone; norcan the mere existence of a writtenConstitution make it succeed… Theconstitutional language and judicialactions, and perhaps most importantly, thebehaviour of political leaders and allparticipants in the political process are allnecessary…”

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Abstract: Vita Sackville-West died in 1962.She was then well known and highly regardedas a poet and novelist. However, what isbarely known at all is that from 1947 to 1962,Vita Sackville-West sat in Cranbrook andTenterden, in the County of Kent, as amagistrate. This article both situates Vitawithin the literary and intellectual milieu of herday and discusses her time on the bench. Thepowers and responsibilities of magistratesduring the late 1940s through the early 1960sare discussed and passages from Vita’s novelsand letters are quoted which shed light on herperspective on, and approach to, her largelyunknown judicial role.

Keywords: Judicial career – responsibilities –erratic and volatile character – qualities sought– cases presided and outlook on writings –well-suited to the magistrate’s role

A Brief IntroductionVita Sackville-West was a woman ofsubstantial talent and accomplishments. Shewas born in England into an aristocratic familyin 1892. She died in 1962. She was acontroversial and intriguing figure who wrotemany purely fictional novels, some historicalfiction and several books of poetry. She alsowrote plays, short stories and books ongardening on the grand scale. Beyond all ofthat, Vita Sackville-West fulfilled an almostwholly unknown judicial role during the last15 years of her life that I have taken it uponmyself to research. The project is far fromcomplete but you may consider this to be aninterim report regarding a work in progress.

Vita Sackville-West achieved fame as a writer ata time when women faced significantly greaterchallenges getting into print than they do today.Some of her better-known novels include TheEdwardians, All Passion Spent and The EasterParty. Though certainly no saint herself, shenevertheless wrote biographies of three saints: St.Joan of Arc and (in a single volume) St. Teresa ofAvila and St. Thérèse of Lisieux. She also wrotebiographies of writers Andrew Marvell andAphra Behn – the latter being the first woman inthe English speaking world said to have made

her living purely as an author. In 1927 her longpoem, The Land, won her the HawthorndenPrize – one of the highest modes of formalrecognition accorded to poets in England. In1946 another long poem, The Garden, wasawarded the Heinemann Prize. That same yearthe King appointed her a Companion of Honour,again in acknowledgement of her contributionsto literature.

Her Life As A Magistrate: Barely KnownIt is an almost wholly unknown fact about VitaSackville-West that qualifies her for discussionin the pages of the Commonwealth JudicialJournal. As I have mentioned, that fact is thatshe sat from 1947 to 1962 – the year she died –in Cranbrook and Tenterden, in the County ofKent, as a justice of the peace and a magistrate.As such she heard all manner of minor criminaland quasi-criminal cases, usually sitting as onemember of a panel of three.

This interesting and, arguably, formativeaspect of Vita Sackville-West’s later life hasreceived scant coverage in scholarly writingsabout her. In particular, it is barelyacknowledged in two otherwise excellentbiographies. Victoria Glendinning devoteslittle more than a couple of paragraphs to thesubject in her definitive Vita: The Life of VitaSackville-West. Apart from mentioning the factof her appointment in 1947, Michael Stevenssays nothing at all on the subject in his brief,but nevertheless illuminating, V. Sackville-West: A Critical Biography.

I came across mention of the largely obscurefact that Vita Sackville-West pursued a judicialcareer when reading the Glendinningbiography a few years ago. With this discoveryI immediately discerned a convergence of myliterary and legal interests. I then determinedthat I would find out more and I have beenresearching the subject, on and off, ever since.I have done so in libraries here and via onlineresources; I have also worked a little researchinto two vacations I have spent in England inrecent years.

I will soon return to a discussion of Vita’sjudicial life.

VITA SACKVILLE-WEST: POET, NOVELIST… ANDMAGISTRATE

Judge Thomas S. Woods, of the Provincial Court of British Columbia, Canada.Presented at The 20 Club, Vancouver, British Columbia, Canada, February 2012.

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A Volatile Early LifeVita Sackville-West had close ties with theBloomsbury Group – that remarkable andexclusive collection of influential Englishintellectuals that comprised writers likeVirginia Woolf, Lytton Strachey and E.M.Forster, economist John Maynard Keynes andpainters Roger Fry and Duncan Grant. WriterClive Bell and his wife Vanessa – VirginiaWoolf’s sister – also belonged. Theseindividuals thrived on controversy. They wereself-consciously avant garde in their thinking,their writing and their art. They wereunapologetic in their condemnation oforthodoxy in almost all domains of humanthought and action. It must also be said thatin some respects they were intolerable culturaland intellectual snobs. There are reasons whysome of their behaviour has been condemnedon moral grounds.

Vita’s life in some respects resembled the livesof her Bloomsbury associates. Indeed, herexcesses and contempt for orthodoxy arguablyexceeded theirs. While her writing has enduredto a degree, it is her reputation for romanticescapades – in the company of the likes ofViolet Trefusis and Virginia Woolf, for example– that best explains why Vita Sackville-West isremembered today. During one such escapadeshe “eloped” to France with Violet Trefusis,leaving two young children and her husbandHarold Nicolson behind without giving anyoneany indication of where she was going, withwhom or for what purpose or duration. The“elopement” was seen as scandalous blot onthe reputations of both women.

Vita and Harold shared a profoundlyunconventional marriage in which bothseemed to maintain a strong bond with oneanother throughout their lives despite the factthat both also indulged numerous relationshipsoutside the marriage. They did not concealthose relationships from one another. Theywere, in every way, a markedly unconventionalcouple, although much of what made them sowas little known while they were living andonly became known in a general way afterboth of them had died.

Vita Sackville-West On The BenchI turn now to a brief description of VitaSackville-West’s powers and responsibilities asa magistrate. A full history and outline of theincidents of her commission as a justice of thepeace is beyond the scope of this paper. Thepicture, for present purposes, is complicated bythe fact that the legislation governing themagistracy in the UK underwent important

changes in 1948, 1949 and 1952, very soonafter Vita’s appointment.

As I have previously noted, Vita Sackville-Westtook office as a justice of the peace, and thus amagistrate, in 1947. She and one other justicewere sworn in together on October 16th ofthat year, in Cranbrook. Some 28 years earlierThe Sex Disqualification (Removal) Act, 1919had been enacted and that statute eliminatedthe barrier that, to that point, had preventedwomen from serving as justices of the peace.

When Vita Sackville-West began sitting, therewas no requirement that she have any legaltraining whatsoever. A lay magistrate’sposition was then (and remains) an unpaidone. The former requirement that magistratespossess substantial landholdings had by thetime of Vita’s appointment been long abolished(although she could easily have satisfied it). Aswell, religious, political and other forms ofinappropriate influence in appointments(which had caused many difficultieshistorically) had been largely eliminated by thecreation in the 1920s of an advisory committeesystem.

Vita’s candidacy was recommended by theadvisory committee for the County of Kentand her appointment was made, on thatadvice, by Viscount Jowitt, the LordChancellor of the day. The qualities sought insuch appointees included (and still includetoday):

(a) Good character;(b) Understanding and communication;(c) Social awareness;(d) Maturity and sound temperament;(e) Sound judgment; and(f) Commitment and reliability.

It is evident from these criteria – and herappointment pursuant to them – that to theextent Vita may have had a tarnished reputationflowing out of her early indiscretions andcolourful history, she must also have developeda reputation within her broader communityduring the 1940s for integrity, intelligence,fairness, good judgment and reliability.

Virtually no one having first hand knowledge ofVita and her life on the bench is still alive.During one visit to England I interviewed JamesStearns who, like his father before him, ran theworking farm on the Sissinghurst property. Infact he was born there and so he grew up, in asense, in Vita’s presence. While he had littlespecific knowledge of her judicial activities, hedid confirm that in his opinion she possessedthe qualities described above in abundance.

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Vita’s appointment conferred upon hercriminal jurisdiction in summary convictionmatters involving adult and youth accused,including jurisdiction over offences created bynon-criminal statutes (such as the Salmon andFreshwater Fisheries Act, 1923, for example).Like all magistrates in her day, she generallysat as a member of panels of three. She wasalso empowered to preside at committalproceedings, akin to preliminary hearings ofthe sort conducted in provincial courts inCanada. While historically justices of thepeace also took a fairly active role in theconduct of municipal business during QuarterSessions, by the time Vita Sackville-West tookoffice in 1947, liquor licensing and taxenforcement were about all that was left ofthat aspect of magistrates’ work.

A Magistrates Association already existed in1947, when Vita was appointed, and itsfunction was, in part, to provide continuinglegal education to sitting justices of the peace.However, with the introduction ofamendments to the Criminal Justice Act, 1948,the Justice of the Peace Act, 1949 and theMagistrates Courts Act, 1952, therequirements for ongoing courses ofinstruction for justices of the peace increasedmarkedly. We can assume that Vita Sackville-West would have participated to some degreein such instruction, although compulsorytraining in the law for new appointees was notintroduced until 1966, four years after herdeath.

Research Findings Regarding Vita’sJudicial RoleJustices of the peace did not give writtenreasons for decision during Vita’s sitting years(they still do not do so in criminal matters) andso all that survives of the cases she heard anddecided, usually en banc with othermagistrates, are bound folio records of theoutcomes that record basic information –dates, names, offences, pleas and dispositions –and little more.

Thus far, the only records I have been able tolocate of cases that Vita heard relate tocriminal and quasi-criminal matters that sheheard while sitting in Cranbrook. (TheTenterden records have thus far mostly eludedme.) In Cranbrook the magistrates presided atQuarter Sessions and Petty Sessions in a largeupstairs room in the Vestry Hall. The buildingsurvives but it no longer serves as a locationfor proceedings before magistrates in Kent.

Some of the records maintained by justices ofthe peace who presided in Cranbrook during

the 1940s and 1950s (including Vita Sackville-West) are now kept in an archival collection ofcourt documents maintained at the Centre forKentish Studies (the “CKS”) in Maidstone, apleasant half-hour drive east from Cranbrookon the A229. Some folio registers regardingprosecutions of “juvenile” and adult accusedheard during Petty Sessions are archived there.Among them is a Book of Oaths containingoriginally signed attestations confirming thatall justices of the peace presiding in the Countyof Kent swore their Oaths of Allegiance to theSovereign and as well their Judicial Oaths. Imanaged to locate Vita’s originally signedattestation among the others in the Book ofOaths that record the appointments ofmagistrates for the county in 1947.

Among the cases over which Vita presided thatare found in the folios at the CKS was the caseof a juvenile who was accused of “throwing anacorn out of a public service vehicle”. Theoffence date was 10 October 1948, and hismatter came on for hearing at Cranbrook on19 January 1949 before magistrates C. RussellScott (chair), the “Hon. Mrs. V.M. Nicolson”(Vita’s married name) and Major J.S. Robson,M.B.E. The youth entered a plea of guilty andthe record of proceedings shows that thecharge was “dismissed under the FirstOffenders Act”. This notation is likelyintended to refer to the Probation of OffendersAct, 1907 which succeeded and replaced theearlier Probation of First Offenders Act, 1887.Section 1(1) of the act in force when the youngperson entered his plea and was sentencedprovided that where, “having regard to thecharacter, antecedents, age, health, or mentalcondition of the person charged, or to thetrivial nature of the offence, or to theextenuating circumstances under which theoffence was committed or [where] it isinexpedient to inflict any punishment or anyother than a nominal punishment” the courtmay “dismiss the information or charge”.

Section 1(1) of the Probation of Offenders Act,1907 and its minimally punitive sanctionscompares closely to s. 42(2)(b) and (c) ofCanada’s Youth Criminal Justice Act. Onemight hope that, today, a youthful Canadianfirst offender accused of an offence akin tothrowing an acorn out of a public servicevehicle might, depending upon thecircumstances, either be referred by the Crownfor extrajudicial measures or, perhaps, bedischarged (absolutely or conditionally) or besentenced with a reprimand under s. 42(2)(a).

Another sample page found in a magistrates’court folio book for 21 June 1961, shows the

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wide variety of court business that occupiedVita (or the “Hon. Lady Nicolson” as she isstyled) and her judicial colleagues. Sitting withher on the panel that day was her frequentcompanion on the Cranbrook bench, SirGeorge Jessel, Bt., M.C. – a descendent of theSir George Jessel who served as the Master ofthe Rolls between 1873 and 1883. Vita, SirGeorge Jessel the Younger and another panelmember dealt on 21 June 1961, with, amongother matters, an application for a temporarytransfer of the liquor license for the ThreeChimneys Public House and an application tovary a removal order previously made underthe National Assistance Act, 1948.

The National Assistance Act, 1948 – invokedby the second applicant on Vita’s court list for21 June 1961 – is the statute that effectivelyabolished the barbaric and antiquated PoorLaws system and ushered in Britain’s socialsafety net. Although it has been amended, theAct remains in force today. To the extent thatit is part of the larger architecture of the BritishWelfare State, the National Assistance Act,1948 has conceptual and policy ties toMaynard Keynes and his particular brand ofeconomic theory.

The “removal order” that was being sought bythe Cranbrook District Council to be variedbefore Vita and her colleagues was an orderthat would have been granted earlier under s.47 of the Act. That section creates ajurisdiction in county magistrates to order,upon application, the removal of persons inneed of care and attention to suitable premises.The persons contemplated by the section arethose who are “are suffering from gravechronic disease or, being aged, infirm orphysically incapacitated, are living ininsanitary conditions” and who “are unable todevote to themselves, and are not receivingfrom other persons, proper care and attention”(subs. (1)). The variation power is found in s.63(4).

The folio sheet for the day in questionconfirms that both applications – that is, forthe liquor license transfer and the variation ofthe removal order – were granted. On thesame day, the panel also took guilty pleas andfined a number of accused on larceny chargesand one accused on a charge of failing to gether children to school. Panel members alsoheard and decided a summary trial for onelarceny accused and adjourned him over to afuture date for sentencing. They fined andsentenced several other accused who pleadedguilty of various driving offences. Vita’s courtday on 21 June 1961 does not sound greatly

different from what might be unfolding on anygiven day in Provincial Court courtroomsaround the province of British Columbia.

Other folio sheets, which I will not cover indetail, show that Vita sat on cases involvingcharges of making false representations toobtain a benefit, “having milk for sale forhuman consumption to which water had beenadded”, not having third party automobileinsurance, fraudulent use of a vehicle license,breaches of probation, “stealing growingapples,” “stealing growing plums,” assault,unlawful wounding, indecent assault against aperson under 16 years and so forth. She alsoheard civil applications for custody andmaintenance of an infant, child maintenancearrears, orders of ejectment, and the like.

Echoes of Vita’s Judicial Experience andOutlook in her WritingsVita’s judicial experience only rarely came upfor mention in her writings. Given theconfidential nature of the charges and disputesover which she presided, that is to be bothexpected and admired. Undoubtedly, though,her exposure to persons less fortunate thanherself who came before her in tryingcircumstances enlarged and gave balance anddepth to her patrician worldview. Vita wasplainly a passionate individual but she was alsoan empathetic one. She was intellectuallycurious. Though born to privilege she was notpervasively snobbish or condescending. Herbiographers have both commented that shecould be “remote”. This was confirmed to meby James Stearns who, as I have mentioned,laboured on and eventually managed theSissinghurst working farm. He described heras a person who was not particularly at easewith “common folk.” In his own words, “shewas a bit shy with the likes of us”. But he wasquick to add that Vita always treated him andall of her staff with respect, dignity andkindness.

It seems clear that as a mature woman Vita’sjudicial experience served to quicken her socialconscience and her compassion for thedisadvantaged. It also deepened her suspicionsand dislikes for those of her own socialstratum, and those in officialdom, whodisplayed airs and pretences. I can illustratethese points with a few examples from herletters and fictional writings.

When handling a case in January 1948 (justweeks after her appointment) in which a brotherand sister, aged 10 and 11, were charged withstealing bicycle lamps “by the dozen,” Vita washorrified to learn that they came from a family

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of nine who lived in just two rooms. In a letterto Harold, Vita refers to the fact that bothchildren had “streaming colds”:

“They [the family] have been trying to geta cottage, and of course they can’t. Nowthis is the sort of thing I should beinterested in if I were you – as a potentialMP. How can kids like that get a decentmoral upbringing? I hate to add anysuggestion which would increase yourmany activities, but I am not at all surethat you wouldn’t get a low-down on thelife of the lower income groups if youjoined the Cranbrook bench. You wouldsee aspects of life which I don’t think youhave ever really taken in.”

This cri de coeur, to me, does not smack ofnoblesse oblige. I do not sense in this or otherexamples of Vita’s writing a high-to-low,dilettante’s feigned interest in the circumstancesof the disadvantaged. Her words ring true andthey are borne out by her actions, includingthose described to me during my interview withJames Stearns. He remembered that he and theother working class “staff” at Sissinghurstreceived generous gifts at Christmas. Mr.Stearns also had a vivid recollection of a timewhen, as a boy, he broke his leg while workingwith his father on the farm and received a visitfrom Vita in hospital. She came bearing giftsand much warmth and kindness. It was agesture quite outside the norm for her class, hesaid. If she were only expressing pro formasympathies for the less fortunate, the positivelypoor and the downtrodden, then surely Vitawould not have taken time away from herwriting, her gardening and her busy socialcalendar for 15 years to deal with the mattersthat came before her in magistrate’s court.

One finds in Vita’s fictional writings apreoccupation with dissembling and falsity.She often places in the action of her novels andstories characters who display a veneer ofrespectability and propriety but who are lesserand baser creatures beneath the veil. One suchcharacter is Noble Godavary, a deceased justiceof the peace whose obituary parrots pottedtruths about a man whose true nature wasstarkly at odds with his public persona. Heappears in the short story, “The Death of NobleGodavary,” which is included in the collectionThirty Clocks Strike the Hour. The narrator (aniece of the deceased) comes across her uncle’sobituary in a local newspaper and is appalledby the disingenuous portrait it paints of him:

“... [A]s for friends, that lonely old wolf,my uncle, never had any; and as forrespect and esteem, if Noble Godavary

with his sly cowardly ways could deludemen into respect and esteem, why, then,there was a chance for all of us … Herewas the Kendal Messenger writing up hisdevotion as a justice of the peace, his ‘typeof the old English squire’; all of whichwas, as to facts, indisputable, but as to thespirit completely misleading.”

It is not difficult to imagine how a person likeVita – whose antennae were carefully tuned todetect signs of dissimulation – might have aninterest in sizing up witnesses and evaluatingtheir credibility, and be good at it.

Similarly, Vita Sackville-West’s fictionalwritings reveal that she was concerned aboutthe risk that the human dimensions of conflictsand disputes might become lost in formal legalprocesses or that those with legal trainingmight become hardened, inclined to over-intellectualise and thus incapable ofrecognising those human dimensions. TheEaster Party was written six years after Vitabegan sitting as a magistrate. In the novel oneof her characters makes these rueful remarksabout lawyers and their work:

“… Lawyers are obliged to be a bitinhuman, aren’t they. They have to takean objective attitude towards their cases;and taking the objective attitudesometimes means that you must lose sightof the human side; I mean, you have toadminister the law, and you can’t take intoconsideration the personal case orhardship …”

Vita’s concerns in this regard are worthy ones– concerns of which (it is hoped) any properlyintrospective judicial figure would be mindful.

Vita did not revel in the ceremony of judicialoffice or in the displays of pomposity that aresometimes associated with it. These things, shebelieved, could lead to “los[ing] sight of thehuman side”. She quite disliked appearing asthe embodiment of state power, wrapped in thefinery and formalities of office, particularlywhen the accused before her – almost alwaysunsophisticated in the ways of the law – wereyoung, bewildered and fearful. On 14December 1949, Vita wrote to Harold, saying:

“I am somewhat agitated, because thepolice telephoned for me to take a rathercomplicated case this morning. I ratherhate these cases, although the humanaspect of them always interests meobjectively. I don’t like it when I am theonly Justice, as I was this morning, andhave to sit in a large armchair behind atable, while the wretched delinquent

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stands before me, and the room is full ofpolice officers and the Clerk of the Courtand his Clerk and the DetectiveSuperintendent, all bringing charges andevidence against the prisoner, and all theponderous weight of the Law and itsapparatus of which I am a part. I alwaysfeel that here is a wild animal trapped andcaged, and that if it sprang suddenly at mythroat it would be seized and restrained bya dozen strong hands; and above all I feel,‘There but for the grace of God and B.M.’s[her mother’s] Marriage Settlement, go I.’‘Take your hands out of your pocketswhen Her Worship speaks to you!’ Ohdarling, it makes me feel like a character ina Galsworthy play.”

This tendency toward a natural humility alsocomes through in the breezy, almost dismissive,way she describes the formalities of her judicialrole and function to an Americancorrespondent written on 17 February 1955:

“… I am a Magistrate, or what we call aJustice of the Peace – and I have to be alltidy in a coat and skirt and a hat – andhave to administer justice to my fellowcountrymen. Then I come home andchange into my old gardening clothes,which means breeches and high boots, andI go and tramp about in mud and snow.Then as dusk falls I come in, and write thebook I am trying to write – and then Ireally feel myself – in my tower, shut away.I become an author again, and amhappy…”

This letter also confirms that, while she woreseveral hats (including a judicial one), Vita wasat bottom a writer and most comfortable whenbent upon authorial pursuits.

Along with numerous other public intellectualsof the day, Vita Sackville-West was asked bythe CBS Radio Network to contribute herperspectives on spiritual matters to its famousThis I Believe series, hosted during the 1950sby Edward R. Murrow. Vita’s offering wasbroadcast in America (and re-broadcast inEurope by Radio Luxembourg) in mid-June of1953 and while it reflects uncertainty aboutthe tenets of organised religion, it revealsnevertheless a clear belief in the transcendentimportance of charity and human compassion.She said, among other things, the following:

“My religion, if I have one, is of theprofoundest humility. It can be resolvedinto the few words: I simply do not know… That there is a Something behind thecreation – an Absolute Abstract if you like,

to which in our human dread and weaknesswe must give a personal name, and to whichwe must attach such human attributes asmercy and justice and loving-kindness, forwhich Nature shows us no justification atall – I can have no doubt whatsoever: it isan inescapable conviction …”

It seems inconceivable to me that thatperspective was not shaped, in part, by theencounters Vita had with those who camebefore her in her judicial capacity and withwhom she must have dealt in a manner thatreflected her duty to the public but was alsoleavened by notions of mercy.

A Summing Up And AnecdotalEvaluationConcerns with genuineness, and with truth andtruth telling; humility; compassion, especiallyfor the disadvantaged; an appreciation that theformalities of legal processes can sometimesoverwhelm its human subject matter; arecognition that mercy fits into largerconceptions of justice – these are some of thethings that the written record tells uspreoccupied Vita Sackville-West as a person, awriter and a magistrate. One might say thatthese are fitting preoccupations for a personwho, after much tumult in her younger years,was entrusted by the Lord Chancellor (on theadvice of a citizen committee) to dispensejustice as a magistrate in the County of Kent fora decade and a half until the year of her death.

There is evidence to show the kinds of casesthat occupied Vita during her judicial life. Andher own writings help us to divine what heroutlook and priorities were, in some instancesspecifically in relation to her actual duties onthe bench. There is almost nothing that I havebeen able to find that speaks directly to theway she performed in her judicial role butthere is no reason to doubt that, in general, sheperformed it with sensitivity and, increasinglyas her experience grew, with skill. Herlongevity on the bench certainly suggests that.

On the other hand, there are some distaff noteswith which we must contend. James Stearns,previously mentioned, recalled that when shedrove, it was Vita’s habit to drive dangerouslyand well over the speed limit. She was also notabove having three or four strong gin andtonics and then, realising that she was late forcourt, roaring out of the Sissinghurst car parkin a spray of gravel on her way to sit in eitherCranbrook or Tenterden. Mr. Stearns musedthat when she got there, she likely sat on anddecided impaired driving cases. In this way

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Vita clearly fell short of reasonableexpectations of a sitting justice of the peace.

The question must be raised of whether, giventhe erratic and volatile character of her early lifeparticularly, Vita was suited by temperament tothe office of justice of the peace. This questiondoes not arise in a lawsuit or a prosecution but,rather, in the course of a backward-lookingsurvey of a thin tissue of historical evidencecarried out by an enthusiastic amateur. I do notcontend that the case concerning her suitabilityfor judicial office is, or can be, proven ordisproven on the evidence that I have been ableto marshal thus far and that I have summarisedhere. But I do think it fair to say, at this point,that while she remains an enigmatic figure, thecircumstantial evidence I have been able togather so far urges the conclusion that in herlater and more settled years, with occasionallapses, she proved herself well-suited to themagistrate’s role. Quite apart from havingontributed significantly to English literature – apoint that is certainly not in doubt – I believe

that the preponderance of the evidence currentlyavailable shows that Vita Sackville-West made avaluable contribution to the life of her localcommunity in her role as a justice of the peace.

The writing of this article would not havebeen possible without the kind, expert andwilling assistance of the following people(to whom I express my sincere gratitude):the late James Stearns and Mary Stearns ofCastle Farm, Sissinghurst; Geoff and PamPiper of Cranbrook and the invaluableCranbrook Community Website; MarkBallard, Elizabeth Finn, DeborahSaunders and Michael Carter of the Centrefor Kentish Studies, Maidstone; DebbieDavidson and Sandra Wilson of theMaidstone Reference Library; DavidBarrett and June Wenborn of the AshfordLibrary; Robert Barman, editor, andLinda Evans, reference librarian, at theKent Messenger; and Rodney Dann,curator of the Cranbrook Museum.

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Abstract: This article underscores the need forstrong public confidence in the Judiciary as apre-requisite for promoting and safeguardingthe independence of the Judiciary. Itemphasises the fact that Judiciaries are part ofan ever evolving dynamic society and must bedynamic to address new challenges anddemands caused by local, national, regionaland international concerns, otherwise they riskbeing relegated to mere observers. It notesthat, whereas de jure independence of theJudiciary is a certainty in most jurisdictions, defacto independence of the Judiciary in Africaremains a challenge, and highlights the centralrole of the Chief Justice in steering theJudiciary into an outward and result-orientedinstitution which is responsive to public needsand is therefore relevant.

Keywords: Public confidence in the Judiciary –role of Chief Justice – threats to judicialindependence – external pressure and influence– difference between de jure and de factoindependence – accountability – result-oriented approach – service delivery surveys –reforming the Judiciary – principles ofcorporate governance – informationmanagement systems

IntroductionThe Chief Justice as the Chief Executive of theJudiciary bears the greatest responsibility innurturing, promoting and protecting theindependence of the Judiciary – because judgesand the public look upon the Chief Justice asthe beacon of the Judiciary’s independence aswell as a protector of their own independence.

A strong Chief Justice not only inspires publicconfidence within the Judiciary but gives thecountry the satisfaction that the courts willdetermine disputes before them fairly andjustly without undue influence from anyquarter particularly the Government. TheChief Justice must therefore, be vigilant indealing with threats to Judicial independenceand in addressing inefficiencies within theJudiciary, which undermine the capacity of the

institution to deliver timely, efficient andeffective justice.

Equally, the Chief Justice must make theinstitutional wellbeing as well as theprofessional strength of judicial officers hisconstant preoccupation if he or she is toprotect and promote the independence of theJudiciary in a sustainable manner.

Judicial IndependenceArticle 10 of the Universal Declaration ofHuman Rights (UDHR) provides that:

Everyone is entitled to a fair and publichearing by an independent and impartialtribunal, in the determination of his rightsand obligations and of any criminal chargeagainst him.

Likewise, art.14(1) of the InternationalCovenant on Civil and Political Rights(ICCPR) provides that:

All persons shall be equal before the courtsand tribunals. In the determination of anycriminal charge against him, or of hisrights and obligations in a suit, everyoneshall be entitled to a fair and publichearing by a competent, independent andimpartial tribunal established by law.

The provisions of the UDHR and the ICCPRhave been largely domesticated in nationalConstitutions to provide for the independenceof the Judiciary. Despite the codification of theprinciples on the independence of the Judiciary,the United Nations found that there existedserious shortcomings between independence ofthe Judiciary on paper and practice. ThePreamble to the United Nations BasicPrinciples on the Independence of the Judiciarynotes that frequently there still is a gapbetween the vision underlying those principlesand actual situation.

The United Nations, therefore, formulated theUN Basic Principles on the Independence of theJudiciary to assist Member States in their taskof securing and promoting the independence of

THE ROLE OF THE CHIEF JUSTICE IN PROMOTINGAND PROTECTING THE INDEPENDENCE OF THEJUDICIARY

Benjamin J. Odoki, Chief Justice of Uganda.Extracted from a lecture delivered at the Southern African Chief Justices’ Forum.

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the Judiciary. Consequently, while the BasicPrinciples do not attempt to exhaustively laydown the normative contents of theindependence of the Judiciary, they nonethelesslay down accepted international standards, orspecific standards which are applicable to aJudiciary in an open and democratic society.

Article 1 of the United Nations Basic Principleson the Independence of the Judiciary providesthat the independence of the Judiciary shall beguaranteed by the state and enshrined in theConstitution or the law of the country. It is theduty of all governmental and other institutionsto respect and observe the independence of thejudiciary.

The UN Basic Principles further enjoin theState to guarantee the independence of theJudiciary; and for the Judiciary to decidematters before it impartially, on the basis offacts and in accordance with the law, withoutany restrictions, improper inducements andpressure from any quarters. The UN BasicPrinciples further lay down the criteria for theindependence of the Judiciary, which include:the right to appeal its decisions, judicialimmunity, protection of judicial officers againstthreats, adequate resources, availability ofqualified staff to assist the judges; access tolaws and precedents; adequate number ofjudges; merit based appointment of judges andadequate powers of the Judiciary to reviewactions of the Executive or the other branchesof Government, as well as other rights andobligations. Of course the UN Basic Principles,the UDHR and the ICCPR, as well as nationalConstitutions, provide in unequivocal termsthat the Judiciary shall be accountable to thepeople. Independence of the Judiciaryinescapably requires the Judiciary to beaccountable.

In practice, the independence of the Judiciaryhas come to mean that the Judiciary shalldecide matters before it independently withoutinterference, undue pressure from any quarterbased on the facts and law. But this is onlyeffective if the Judiciary enjoys institutional,administrative, individual and financialindependence in the discharge of its functionsand mandate.

Judicial Independence can take two forms: (1)de jure independence – this is the independenceof the court as can be deduced from theConstitutions or the law; and (2) de factoindependence – this is the degree ofindependence that the court actually enjoys inpractice. An independent Judiciary enjoys bothde jure and de facto independence.

In Africa, most Constitutions entrench theprovisions of the UDHR, the ICCPR and theUN Basic Principles on the Independence of theJudiciary. On paper, African Judiciaries can bedescribed as enjoying de jure independence.Most Constitutions provide that the Judiciaryis an independent arm of the Government andthat all organs, agencies and institutions shallbe obliged to assist the Judiciary in carryingout its mandate. In some countries, there arealso Constitutional and statutory provisionsproviding for institutional, financial andjudicial autonomy for the Judiciary.

That notwithstanding, most Judiciaries both inAfrica and beyond still face challenges to theirindependence because their independence onpaper has not been translated into realindependence in practice. In rankings ofselected countries in Judicial Independence byboth the World Bank and the World EconomicForum, African countries consistently fareworse than their counterparts in the NorthernHemisphere. Although it must be said thateven in the developed democracies, thepressures on the executive to respond to newthreats such as terrorism, economic downturns, pressing needs to adopt a liberal orconservative approach to national issues suchas abortion and control of guns, have seen,especially the executive, interfering with thespace of the Judiciary.

In Belgium, the Fortis gate, as the affair cameto be known, arose in consequence of theworld banking crisis. Fortis was Belgium’sbiggest financial service company untilOctober 2008 when it found itself facingbankruptcy. Its bail out led to legalproceedings during the course of which it wasfound that the government had tried toinfluence judges who were adjudicating on thelegality of the proposed sell off. The Ministerof Justice was forced to resign when the PrimeMinister admitted publicly that one of theMinister’s officials had contacted the husbandof a judge of the Court of Appeal on severaloccasions during the course of the litigation.

Lord Phillip, the former Chief Justice ofEngland and Wales observed that this case hadprovided a salutary example that these thingscan happen (interference with theindependence of the Judiciary), even in amature democracy, where, and perhapsbecause, the principles are taken for granted.

In Africa, interference in the Judiciary’s spacehas been most pronounced in states refusing toobey and enforce decisions of the courts, openattacks on the Judiciary; storming of theJudiciary (as happened in Uganda some years

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back), poor facilitation of the Judiciary; delaysin the appointment of Judges; failing toprovide an adequate working environment forjudicial staff; poor pay and relegating theJudiciary among the second or third bestpriorities of Government. Suffice to mentionthat the meager resources allocated to theJudiciary, as compared to the other organs ofGovernment, is a reliable indication of thepriority placed on the Judiciary in Africa. Thede-prioritization of the Judiciary – which is thecornerstone of the rule of law – therefore begsthe question whether the rule of law, is stillaccorded significant priority in Africa.

Justification for Judicial Independence:Despite the threats to Judicial Independence,the Judiciary still continues to play a crucialrole in upholding the rule of law; orderlysettlement of disputes and in guaranteeing theobservance, respect and enjoyment offundamental human rights by all, especially themost vulnerable.

It is undeniable that the pursuit of anindependent Judiciary, as Lord Phillips held atthe 16th Commonwealth Law Conference(2009):

Flows from the specific character of thefunction of the Judiciary: to adjudicatedisputes between the Government and thecitizen, or between the one citizen andanother, in accordance with the law.Constitutional democracy and the rule oflaw requires a separation between, on theone hand, the legislative and executivebranches that make and implement thelaw, and on the other hand, the judicialbranch that interprets and applies the lawwhen disputes arise in a particular case ...More particularly, an independentjudiciary is necessary for the enforcementof constitutional limits imposed on thepower of the executive and legislativebranches. If the executive branch is seen asbeing able to exercise improper influenceon the judiciary’s exercise of judicialfunctions, the rule of law is undermined. Ifthe legislature or the executive branch isseen as being able to improperly influencethe adjudication of constitutional limits onthe powers of the these branches, the basicstructure of constitutional democracy isalso undermined.

In addition, an independent Judiciary ensuresthat the rule of law applies to every oneequally. It ensures that all, including the State,respect and observe the basic fundamentalfreedoms. At the level of trials, judicial

independence guarantees the rights to a fairtrial. At higher levels, respect for andsubjection to the law can only be sustained ifneutral institution exists to ensure that the lawis respected and enforced against all.

The Role of the Chief Justice inMaintaining and Protecting theIndependence of the JudiciaryBecause the Judiciary plays a central role ingood governance and remains under constantthreat, the Chief Justice, as head of theinstitution, bears the greatest responsibility inshouldering and protecting the institution fromthe predatory instincts of the executive and thelegislature.

Reflecting on the role of the Chief Justice, theChief Justice of the Republic of Singaporeobserved that:

The functions of the Chief Justice as headof the Judiciary generally can be said to bethreefold. First, the Chief Justice is thesymbol of the third arm of government...and, as its head, acts for the Judiciary in itsrelations with the other two arms ofgovernment (i.e., the Legislature and theExecutive). Second, the Chief Justice is theadministrative head (i.e., the chiefexecutive officer) of the Judiciary and isresponsible for the efficient and properadministration of the courts, includingobtaining sufficient judges and court staffto run the courts smoothly. Third, theChief Justice is the senior judge in theJudiciary and, depending on his or herpersonal qualities as a judge, can, by his orher leadership, influence the developmentof the law and the legal system of thecountry.

Therefore, because of his or her publicstanding, the Chief Justice has a special role inensuring the continued existence of theindependence of the Judiciary. He or sheestablishes the values for the Judiciary and setsthe direction and “tone” of the judicial system.The Judges look to the Chief Justice forleadership. The public looks to the ChiefJustice for justice. To the people, the ChiefJustice is the face of justice in the State and theprotector of the people against the wrongs ofothers and abuses of power or wrong-doing orunlawful acts of state agencies. A strong andindependent Chief Justice can personify theindependence of the Judiciary and exemplifythe exercise of independence in judicialproceedings.

But a weak Chief Justice will undoubtedly havea debilitating effect on the other judges and

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affect public trust and confidence in the entirejudicial system. It goes without saying that theChief Justice must always be available toprovide strong leadership to the Judiciary,paying particular attention to securinginstitutional independence of the judiciary aswell as personal independence of individualjudges. The Chief Justice must lead by exampleand at the front line – guarding againstinterference from the executive because it is theexecutive (which) is the most frequent litigatorin the courts. It is from executive pressure orinfluence that judges require particularly to beprotected.

Apart from offering strong leadership, theChief Justice can promote Judicialindependence by building a robust judiciaryand responding to threats to judicialindependence. Threats to judicial independenceinclude poor service delivery, overbearingexecutives; weak legal frameworks; limitedresources; national, regional and global threats;weak internal institutions; corruption; inwardlooking judiciaries; conservatism and slowreform; limited use of technology andinnovation, and inertia to adopt a businessapproach to service delivery. These and otherthreats, caused by the enemies from within arebigger threats to judicial independence thanexternal executive pressure.

Promoting Judicial Independence beyondthe Chief Justice: Improved ServiceDelivery the hallmark of JudicialIndependenceAn independent Judiciary is of no value to alitigant if it cannot deliver timely and qualityjustice. A litigant expects no more than a fairand timely decision from the court.

It is therefore an accepted fact that theJudiciary is responsible for delivering a publicgood called justice. In many cases, Judiciarieshave failed to deliver timely and efficient justiceresulting in loss of public confidence in theJudiciary. The existence of delay, case backlogsand unpredictability of the judicial system areglaring signs of an inefficient Judiciary.

Lord Denning warned that inefficiencies in theadministration of justice can turn justice sourwhile Charles Dickens warned thatinefficiencies in the administration of justicecan exhaust finances, patience and hope - andwe could add, loss of faith in the Judiciary asan independent arbiter of disputes. Loss ofpublic confidence in the Judiciary oftenprovides the moral justification for the State tointervene and interfere in the Judiciary underthe guise of sorting out the Judiciary. As we all

know, this can only result into interferencewith the independence of the Judiciary.

Therefore, every Chief Justice must focus oncreating a vibrant and respectable Judiciary,which is efficient, effective and responsive inaddressing the needs of the public. Reformingand strengthening the Judiciary must be thepreoccupation of every Chief Justice as theChief Executive of the Judiciary.

The starting point is for the Judiciary to carryout service delivery surveys to establishwhether it is meeting the expectations of thepopulation; if not, why it is not meeting theexpectations; what are the gaps in servicedelivery and what are the areas forimprovement. A service delivery survey willhelp the Judiciary to assess what the publicthinks about it; why the institution is underperforming; which processes and proceduresneed to be changed and what processes andprocedures need to be introduced.

No doubt, this will call for a paradigm shift.The Judiciary has to change from being abureaucracy to a business-oriented institution.The Judiciary has to move from an overlysupply-focused institution, which often secondguesses what the public wants to a demand-focused institution, which exists for thewellbeing of its clients. Only dynamicinstitutions survive in the hostile environmentbecause they can innovate and respondmeaningfully to the needs of their clients.

Likewise, the Judiciary can only survive loss ofpublic confidence by responding to publicneeds as a pre-requisite to effective servicedelivery. African Judiciaries must, therefore,focus more on dealing with delayed justice;bridging the gap between the people and thelaw; lowering the transaction costs of doingbusiness or litigation in courts; being humaneand customer focused and friendly; dealingwith corruption; being predictable andadhering to service delivery standards.

There can be no doubt that a Judiciary, whichhas the confidence of the people will beprotected and assured public support in timesof attacks from the other organs of the State. Itis also true that a Judiciary, which is distrustedfor being partial and inefficient, may berejected for mob justice (as happened to theJudiciary in the aftermath of the Kenya generalelection in 2007).

Improving the integrity of the JudiciaryStrengthening the integrity within the Judiciarythrough the elimination of real and perceivedcorruption can go a long way in building public

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trust and insulating the Judiciary againstinducements caused by bribery and corruption.This can be done through the adoption of codesof conduct based on the Bangalore Principles ofJudicial Conduct and ensuring that the Codesare domesticated and enforced as part of theroutine disciplinary measures of the JudicialService Commission. Additionally, Judiciaries,as is the case in Uganda, should make it apunishable offence for judicial officers toviolate codes of conduct to enhance adherenceand respect for the codes.

Corruption in the judiciary ought to beaddressed holistically through strategies thataddress the causes of corruption, detection,punishment and reform of the convicts. Suchstrategies include a zero tolerance tocorruption; streamlining processes; enhancingfinancial management; improved pay;establishing a strong public complaints systemwith strong response mechanisms to thepublic; providing hotlines to receive calls oncorruption; opening up the Judiciary throughsimplification of laws, procedures andprocesses so that the public can very easilyunderstand, approach and contact the courtwithout recourse to third parties; automatingsome processes to reduce physical contactbetween court staff and the public; providinglegal aid to balance equality of arms and helpthe more vulnerable, and operating an opendoor policy which engenders the public to thecourts. Anti-corruption measures should bematched by deliberate policies on the part ofthe Judiciary to extricate corruption from itssystems.

Public support for the judiciary’s anti-corruption efforts is a pre-requisite to winningthe war on corruption. Public support can begarnered through an outreach program whichnot only opens up the Judiciary to publicscrutiny but provides a mechanism for theJudiciary to explain itself and receive viewsand/or complaints and suggestions from thepublic. The establishment of public relationsoffices within the Judiciary is a necessary toolfor opening up communication channels andproviding the link between the public andjudiciary which may be seen as aloof, corruptand out of touch with reality.

Other avenues include: establishing hotlinesand web-based complaints processingmechanisms; using suggestion boxes; involvingthe public in the administration of justicethrough participation in court of usercommittees and involving the public in qualityassurance of the Judiciary. These measuresserve to strengthen and empower communities

to fights and protect the Judiciary from theexcesses of the other branches of Government.

Corporate GovernanceWhereas the strict application of the doctrineof separation of powers abhors corporategovernance between the three organs of theState and whereas critics, such as Lord Phillips,think that corporate Governance can erodejudicial independence, evidence fromjurisdictions where principled corporategovernance is practiced tend to suggest theopposite.

In Uganda, when the Judiciary was attacked bythe Executive, it took the Judiciary and theExecutive to candidly discuss the issues thatcaused the affront on the Judiciary. Ugandawas able to peacefully resolve the issues and tosecure the commitment from the Executivethat it would never carry out such actionsagainst the Judiciary. That occasion gave thewarring arms of State an opportunity tounderstand each other’s mandates and spheresof operations.

Be that as it may, corporate governance ininstitutions does not, however, meanabdication of principle, but should ratherreinforce the trinity of the separation ofpowers and the need for the three arms of theState to work towards the upholding of therule of law and respecting the basic freedoms.

Judiciaries can use corporate Governance toargue for increased resources to meet theirneeds by getting the Executive and theLegislature to appreciate the role of theJudiciary in the transformation of the country.

Strengthening Judiciaries: a healthy mindin a healthy bodyThe courts can only deliver timely justice whenthey are well resourced, facilitated and aresupported by adequate numbers of qualifiedstaff to discharge their mandates. Judiciariesmust, therefore, aim at having financial andinstitutional autonomy entrenched within thelaw with clear provisions protecting andproviding for the autonomy. Whereas inclusionof such provisions in the Constitution hasgiven superficial relief to the Judiciary,enactment of an elaborate law with clearlydefined rights, responsibilities and obligationsof the three arms of government has proved tobe more sanguine and efficient in holding toaccount the Executive, which has tended toexploit the unclear and unequivocal provisionson the Judiciary. Judiciaries world over mustensure that they have a separate and elaboratelaw to define their powers, scope and

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relationship in the national set up of theGovernment. Such laws must secure andprotect adequate funding for the Judiciary;adequate professional and administrative staff;proper working environment and tools; betterterms and conditions of service, as well as theinsulation of the Judiciary against externalthreats.

In Uganda, we have proposed the enactment ofthe Administration of Justice Bill which isalready with the Government.

Repositioning the Judiciary amonggovernment priorities: The missing link:

Governments are obsessed with result-basedmanagement which emphasizes impact andaccelerated growth based a preconceivedpriorities. Resources are allocated on the basisof priorities. Finding sufficient resourceshowever, requires the Judiciary to identify itselfamong the key priorities of the Government.Prioritizing the rule of law, which the Judiciarycontributes to, is therefore of utmostimportance. Judiciaries must urge the State toprioritize the rule of law and be strategic andavoid blind budgeting which emphasizesactivities and processes. Judiciary budgetsmust focus more on achieving impact, which inthis case may include strengthening the rule oflaw, accelerated economic growth; increasedinvestor confidence in the country; safety ofthe person and security of property.

Increased use of TechnologyTechnology has brought about innumerablebenefits of speeding up production andlowering transaction costs. Yet despite theconspicuous benefits of technology, Judges andJudiciaries still continue to rely on mainlyhuman energy in processing cases. Courts caninvest in court room technology to speed upprocesses and deliver timely justice. As theformer Chief Justice of England, Lord Philips,observed:

We must train ourselves to take advantageof technological developments so that oursystems are improved by it, so that judgesare its masters and not its slaves.

Investing in accurate data collection andprocessing of data into information through anintegrated information management systemenables the Judiciary’s management to plan forthe future, managing public needs, and allows

for evidenced-based planning and budgetingfrom a position of knowledge which isessential to garnering more resources.

Continuous professional training ofjudgesJudiciaries are part and parcel of a dynamicsociety which is changing at a pace equal toforces of innovation caused by advancement inknowledge, technology and globalization.Judges have an obligation to constantly updatetheir knowledge of the law and theirenvironment if they are to be part of thehuman revolution. Consequently, Judgesshould maintain their knowledge of the lawand keep up with developments in the law.

Chief Justices should prioritize establishmentof Judicial Training Institutes to providetailored continuous professional training forjudiciary staff to keep them ahead of theprivate bar and abreast with developments at anational, regional and international level. InUganda we have established the JudicialStudies Institute headed by a High Court Judgeto conduct judicial training.

ConclusionProtecting the independence of the Judiciarylargely falls on the hands of the Chief Justicebecause he or she represents the public face ofthe judiciary and is required as chief executiveof the Judiciary to promote its core valueswhich include Judicial independence. Being thecore function of his job, the Chief Justicecannot take a back seat. He must be at thefront line, but like any good commander, hemust have at his call the Judges and otherjudicial officers who are his soldiers in thetrench and constitute the second line ofdefence.

The Chief Justice may well do better bybuilding linkages with the community, theprivate bar and regional, continental andinternational Judiciaries to reinforce hiscapacity to protect and promote Judicialindependence. The Chief Justice must take careto ensure that courts exhibit real and perceivedindependence for we have to recognize thathowever ill-founded a perception may be infact, perception itself is a fact. As it was oncesaid, “the judge who gives the right judgmentwhile appearing not to do so may be thriceblessed in heaven but on earth he is no use atall”.

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Constitutional law – Fundamental rights –Freedom from discrimination – Sex discrimina-tion – Judicial appointments – Constitutionalrequirement for not more than two-thirds ofmembers of elective or appointive bodies to beof same gender – Supreme Court –Appointment of five men and two women asjudges – Petitioners claiming that appointmentsnull and void – Whether requirement of at leastone-third of Supreme Court to be womenmandatory – Whether giving rise to immediateenforceable right – Whether Judicial ServiceCommission required to take affirmative actionto apply two-thirds gender principle – Whethercourt having jurisdiction to hear and decidepetition – Whether two-thirds gender principleapplicable to judicial appointments –Constitution of Kenya 2010, arts 19, 27, 165,168, 172.

Article 163 of the Constitution of Kenya 2010established a Supreme Court of seven judges asthe highest court in Kenya. The appointmentof judges was to be made by the President onthe recommendation of the Judicial ServiceCommission (the commission). The commis-sion, in accordance with the Judicial ServiceAct 2011, short-listed and interviewed personshaving the requisite qualifications and experi-ence and recommended a male and female tobe Chief Justice and deputy Chief Justice andfour men and one woman to be judges. ThePresident accepted the recommendations andgazetted the appointments of the judges. Thecourt accordingly comprised five men and twowomen. Article 27(8) of the Constitutionstated that ‘the State shall take legislative andother measures to implement the principle thatnot more than two-thirds of the members ofelective or appointive bodies shall be of thesame gender’. The main petitioners, theFederation of Women Lawyers of Kenya,petitioned the High Court for a declarationthat the commission’s recommendation wasgender insensitive, discriminatory, disre-

spectful of women and contrary to art 27(8) ofthe Constitution and therefore null and void;they also sought an order restraining theappointments. Under the provisions relating toequality and freedom from discrimination inart 27, ‘Every person is equal before the law’(art 27(1)), ‘Women and men have the right toequal treatment, including the right to equalopportunities in political, economic, culturaland social spheres’ (art 27(3)), ‘The State shallnot discriminate directly or indirectly againstany person on any ground, including ... sex’(art 27(4)) and ‘To give full effect to the reali-sation of the rights guaranteed under [art 27],the State shall take legislative and othermeasures, including affirmative actionprogrammes and policies designed to redressany disadvantage suffered by individuals orgroups because of past discrimination’ (art27(6)). Article 172(2)(b) required the commis-sion to be guided in the performance of itsfunctions by ‘the promotion of gender equal-ity’. A sweeping-up clause in Sch 5 of theConstitution stated that the implementationperiod of ‘Any other legislation required bythis Constitution’ was five years. Thepetitioners contended that at least one-third ofthe persons recommended by the commissionfor appointment to the Supreme Court oughtto have been women and therefore at leastthree out of the seven judges ought to bewomen, that the requirement of at least one-third of the Supreme Court to be women wasmandatory under the Constitution and that thecommission was required by art 27(6) to takeaffirmative action to attain that object asevidenced by the word ‘shall’ in arts 27(6) and27(8). The commission contended that thecourt had no jurisdiction to entertain anddetermine the issues raised in the petitionbecause once the five judges were appointedand gazetted as Supreme Court judges inaccordance with art 166 of the Constitutionthey could only be removed under the proce-dure set out in art 168 for the removal of a

FEDERATION OF WOMEN LAWYERS KENYA ANDOTHERS v ATTORNEY GENERAL AND ANOTHER

25 August 2011, [2011] 5 LRC 625

HIGH COURT OF KENYA (MWERA, WARSAME AND MWILU JJ)

LAW REPORTS

superior court judge on grounds of mental orphysical incapacity, misconduct, bankruptcy orincompetence by a special tribunal appointedby the President. The commission furthercontended that appointments to superiorcourts had to be made according to the criteriaspecified in art 166(2), namely on their qualifi-cation for office, their experience and theirhigh moral character, integrity and impar-tiality, and that the recommendations had beenmade purely on merit. The questions arose: (i)whether the court had jurisdiction to entertainand decide the issues raised in the petition, (ii)whether the equal protection and affirmativeaction requirements in art 27 required that atleast one third of the Supreme Court judiciarybe women, (iii) whether art 27(8) gave rise toan immediate right which had to be imple-mented and enforced by the court and (iv)whether the commission in exercise of itsmandate under art 172, read together with theJudicial Service Act, had strictly, sufficientlyand satisfactorily complied with art 27(8).

HELD: Petition dismissed(i) The jurisdiction of the High Court under

art 165 of the Constitution was completelydifferent from that of a tribunal appointedunder art 168 to consider the removal of asuperior court judge. The tribunal’s juris-diction only arose when there was allegedmisconduct, inability to perform thefunctions of office because of mental orphysical incapacity, breach of the code ofconduct, bankruptcy, incompetency, grossmisconduct or misbehaviour on the part ofa judge. By contrast, under art 165(3) theHigh Court’s original jurisdiction in civilmatters was unlimited and included juris-diction to determine questions regardingthe rights and fundamental freedoms in theBill of Rights. The court had the requisitejurisdiction to hear and determine thepetition because it concerned the processand constitutionality of appointment ofSupreme Court judges and the court wouldbe required to evaluate and assess whetherthe commission had conducted theappointments in accordance with the law,fairness and justice and whether theprocess of appointment was invalidbecause it was unconstitutional, wrong,unprocedural or illegal.

(ii) The 2010 Constitution was a flexible andadaptable instrument, some of its provi-sions being highly specific, others no morethan a broad outline; sometimes it had tobe read restrictively, at other times loosely.It had a consistent and not contingentmeaning and could not be interpreted as

having different meanings at differenttimes. When interpreting the Bill of RightsChapter the court was required to promotethe values underlying an open democraticsociety based on human dignity, equalityand freedom and to have regard to thespirit, purport and objects of Bill of Rightsand its purpose, set out in art 19, of ‘recog-nising and protecting human rights andfundamental freedoms [in order] topreserve the dignity of individuals andcommunities and to promote social justiceand the realisation of the potential of allhuman beings’ in Kenya. That required thecourt to adopt a generous and sustainableinterpretation of the Bill of Rights whichgave individuals in full measure the funda-mental rights and freedoms, while takingfull cognizance of the social conditions,experiences and perception of the people ofKenya. The court had to be liberal andpragmatic, with a degree of humility andcommon sense, in order to advance therights and liberties enshrined in theConstitution, and fundamental issuesconcerning the Bill of Rights were not to bedecided on narrow, pedantic, flimsy orconservative grounds which were likely toerode the confidence of the people in theadministration of justice.

(iii)The issue before the court was not whetherthe commission’s conclusions were patentlyunreasonable but whether its interpretationof the provisions of the Constitution wasunconstitutional. Article 27 concerned‘equality’ and ‘freedom from discrimina-tion’, which were one and the same thing,and the basis of art 27 was the recognitionof the worth of all human beings. A personclaiming a violation of art 27 of theConstitution had to establish, first, thatbecause of a distinction drawn between theclaimant and others he had been deniedequal protection or equal benefit of the lawand, second, that the denial constituteddiscrimination on the basis of one of thegrounds in art 27. Whether the distinctionbetween the claimant and others had theeffect of imposing a burden, obligation ordisadvantage not imposed on others or ofwithholding or obstructing access tobenefits or advantage which were availableto others was an essential and importantelement in determining whether there was aviolation of art 27.

(iv)The Constitution did not require thingsand circumstances which were different infact or opinion to be treated in law asthough they were the same. The lawrequiring equal protection permitted many

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practical inequalities and the equal protec-tion requirement enshrined in art 27 didnot mean that all laws passed by the legis-lature had to apply universally to allpersons or that a law could not createdifferences as to the persons to whom itapplied or the territorial limit within whichit was enforced. Thus the equal protectionrequirement did not prevent reasonablelegislative classification of people intodifferent groups, depending on the purposefor which the classification was made.Classification was permissible if it wasbased on a real and substantial distinctionwhich bore a just and reasonable relationto the object sought to be attained and wasnot arbitrary or without substantial basis.A classification had to be rational: not onlydid it have to be based on qualities orcharacteristics which were to be found inall the persons grouped together and not inthose who were left out, but also thosequalities and characteristics had to have areasonable relation to the objects of thelegislation. The classification had to fulfiltwo conditions, first that it was founded onintelligible differentia which distinguishedthose who were grouped together fromothers (although the difference whichwarranted a reasonable classification neednot be great) and secondly, that the differ-entia had a rational relation to the objectsought to be achieved by the legislation.The question for the court was not whethera provision resulted in inequality butwhether it gave rise to a difference whichbore a just and reasonable relation to theobject of the legislation, since mere differ-entiation or inequality of treatment did notper se amount to discrimination which wascontrary to the equal protection require-ment in art 27.

(v) Affirmative action was both a remedy orredress for past wrongs, by giving aminority preference to make up for pastdiscrimination that placed them at anunfair disadvantage, and a means ofadvancing socially a worthy and progres-sive aim by equipping a disadvantagedminority with the means to advance topositions of leadership in key public insti-tutions in order to serve the common goodand wider interest of society and reflecthomogeneity of race, ethnicity and class.However, if the aim was to help the disad-vantaged it ought to be based on somethingmore than female gender and the conceptof affirmative action was not meant tosecure special treatment for any groupwithin society. Moreover, it was not appro-

priate for judicial appointments, whichrequired persons to have received rigorouslegal training and to have the necessaryexperience to be judges.

(vi) In recommending persons to the Presidentfor appointment to the Supreme Court, thecommission was required to promote andfacilitate the independence and accounta-bility of the judiciary and the efficient,effective and transparent administration ofjustice. Judicial appointments ought to bebased on merit and non-discrimination andabove all ought to reflect the diversity ofthe people of Kenya, but also taking intoconsideration the values, beliefs andexperience that could be brought by anindividual to a particular position. Womenwere just as likely as men to possess theattributes and experience of good judgesand any person who met the criteria andstandards set had a legitimate expectationto be recommended for appointment. Therole and the powers of the commissionwere clearly defined by the Judicial ServiceCommission Act and the Constitution and,in the exercise of its constitutional duty, thecommission had no discretion other than tocomply with the provisions of art 27 and172 of the Constitution. In the event, therewas no evidence that the commission hadfailed to comply with art 27(8) inexercising its functions.

(vii)The rights under arts 27(6), (7) and (8)were by their nature aspirational andprogressive in character, since theydepended on the enactment of legislationand formulation of policies for their reali-sation and therefore did not give rise toimmediately enforceable rights. Instead, art27 created positive obligations on the stateto establish coherent programmes capableof facilitating the realisation of art 27rights within the time frame of five yearsfrom 27 August 2010, within the state’savailable means. The purpose of art 27(8)was to place a future obligation on thestate to address historical or traditionalinjustices that had been encountered by orvisited on a particular segment of thepeople of Kenya. Article 27(8) obliged thestate to take positive measures which werereasonable, practicable and able to addressthe genuine needs of the vulnerable groupsof society and redress any disadvantagessuffered by individuals or groups becauseof past discrimination, but Parliament hada mandate to do what it considered appro-priate for the purpose of enforcing orsecuring the enforcement of the two-thirdsgender principle and the precise contours

31

and content of the measures to be adoptedwere primarily a matter for the legislatureand the executive, not the courts. It wouldbe unrealistic and unreasonable to holdthat art 27 gave an immediate and enforce-able right to any particular gender inregard to the two-thirds principle.Moreover, art 27 did not address or imposeany duty on the commission in theperformance of its constitutional, statutoryand administrative functions. Any claimunder art 27 could only be sustained

against the government and then only by aspecific complaint that it had failed to takelegislative and other measures to achievethe progressive realisation of a right underart 27. Since the rights under art 27(8) hadnot crystallised and could only do so whenthe state took or failed to take legislative orother measures designed to redress anydisadvantage within the time frame set bySch 5 to the Constitution, the petition hadto be dismissed.

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Judiciary – Bias – Judge – Allegation of bias –Apprehension of bias in form of prejudgment –Fourth respondent judge finding that appellanthad adopted fraudulent document destructionpolicy – Existence of that policy being in issuein subsequent and unrelated proceedingsbrought against appellant by first respondent –Fourth respondent refusing to disqualifyhimself from hearing claim – Whetherapprehension of bias rule disqualifying fourthrespondent from hearing first respondent’sclaim.

The first respondent was the widow of D, whodied from lung cancer in 2006. Shortly beforehis death he had commenced proceedings inthe Dust Diseases Tribunal of New SouthWales (the Tribunal) claiming damages innegligence against three defendants includingthe appellant (BATAS). In the case againstBATAS, D pleaded that he had smokedtobacco products for a number of years andthat throughout that period BATAS knew, orought to have known, that smoking tobaccoproducts could cause lung cancer. He claimedthat BATAS was in breach of the duty of carethat it owed to him. The breaches of dutyparticularised included making publicstatements denying that there was reliableevidence that smoking could cause lung cancerand disparaging material in the public domainwhich indicated the existence of that link. Dasserted that BATAS had developed andimplemented a policy of destroying documentsthat could have provided evidence adverse toits interests in litigation. Similar allegationsconcerning the existence and implementationof a document destruction policy had beenpleaded in earlier proceedings in the Tribunal,in which the fourth respondent (a judge of theTribunal) found during a discovery applicationthat ‘on the present state of the evidence’BATAS had drafted or adopted its documentretention policy for the purpose of a fraud. Thefinding was substantially based uponacceptance of the evidence of G, the in-housecounsel and company secretary of BATAS. Thefourth respondent was mindful that theapplication was interlocutory and of thelimited challenge that BATAS had advanced tothe acceptance of G’s evidence. The question of

whether BATAS adopted and implemented adocument retention/destruction policy for thepurpose of destroying documents adverse to itsinterests under the guise of a non-selectivehousekeeping policy was a live and significantissue in the first respondent’s proceedings. In2009 BATAS made an application to the fourthrespondent asking him to disqualify himselffrom hearing the first respondent’s claim. Theapprehension of bias rule required a judge notto hear a case if a fair-minded lay observermight reasonably apprehend that the judgemight not bring an impartial mind to theresolution of the question that the judge wasrequired to decide. In the instant case theapprehension raised was of prejudgment; itwas an apprehension that, having determinedthe existence of the policy in the earlierproceeding, the fourth respondent might notbe open to persuasion towards a differentconclusion in the first respondent’s proceeding.The application was refused. In his reasons onthe recusal application, delivered three yearsafter the discovery judgment, the fourthrespondent addressed BATAS’s submission thatG had been cross-examined ‘in a red-bloodedway’ and that the discovery application hadbeen a ‘mini trial’. He considered that it wasapparent from the earlier judgment that G’scredit had been subjected to no more than a‘peripheral attack’. BATAS sought leave toappeal from the fourth respondent’s order tothe Court of Appeal. BATAS also commencedproceedings in that court claiming an orderprohibiting the fourth respondent fromhearing or determining the first respondent’sclaim. The Court of Appeal dismissed bothsummonses. The majority of the Court ofAppeal concluded that the hypotheticalobserver would have some understanding thatthe fourth respondent’s finding wasinterlocutory and made on hearsay evidencethat would not be admissible on a finalhearing, that the observer would appreciatethat for tactical reasons BATAS might havedecided not to call evidence on the applicationto counter that of G and, in thosecircumstances, that the hypothetical observerwould not reasonably apprehend that thefourth respondent might not bring an impartial

BRITISH AMERICAN TOBACCO AUSTRALIASERVICES LTD v LAURIE AND OTHERS

1 September 2010, 9 February 2011, [2011] 3 LRC 513

HIGH COURT OF AUSTRALIA (French CJ, Gummow, Heydon, Kiefel and Bell JJ),

33

and unprejudiced mind to the determination ofthe issue once all admissible evidence had beenreceived and the matter had been fully argued.The minority pointed out that the fourthrespondent had made a relevantly unqualifiedfinding of dishonesty and fraud and the gravequality of such a finding by a trial judge andthe necessity for the judge to be persuaded inhis mind as to its truth was such that a fair-minded lay observer might reasonably thinkthat the judge might not be able to bring amind free of the effect of the prior conclusionto bear in dealing with the same issue inrespect of the same party on a later occasion.BATAS appealed. The question raised by theappeal was whether the apprehension of biasrule disqualified the fourth respondent fromhearing the first respondent’s claim.

HELD: (French CJ and GummowJ dissenting) Appeal allowedPer Heydon, Kiefel and Bell JJ. It wasfundamental to the administration of justicethat the judge was neutral. It was for thatreason that the appearance of departure fromneutrality was a ground of disqualification.Because the apprehension of bias rule wasconcerned with the appearance of bias, and notthe actuality, it was the perception of thehypothetical observer that provided theyardstick. It was the public’s perception ofneutrality with which the rule was concerned.The lay observer might reasonably apprehendthat a judge who had found a state of affairs toexist, or who had come to a clear view aboutthe credit of a witness, might not be inclined todepart from that view in a subsequent case. Itwas a recognition of human nature. At issue inthe instant case was not the incautious remarkor expression of a tentative opinion but theimpression reasonably conveyed to the fair-minded lay observer who knew that the fourthrespondent had found that BATAS engaged infraud and who had read his reasons for thatfinding. Judges were equipped by training,experience and their oath or affirmation todecide factual contests solely on the materialthat was in evidence. The hypotheticalobserver was reasonable and understood thatthe fourth respondent was a professionaljudge. None the less, the observer was notpresumed to reject the possibility ofprejudgment. If it were otherwise anapprehension of bias would never arise in thecase of a professional judge. Whenever a judgewas asked to try an issue which he or she hadpreviously determined, whether in the sameproceedings or in different proceedings, andwhether between the same parties or differentparties, the judge would be aware that

different evidence might be led at the latertrial. In the instant case the fourth respondent’sexpress acknowledgment of that circumstancedid not remove the impression created byreading the judgment that the clear views therestated might influence his determination of thesame issue in the first respondent’sproceedings. In addition to the possibility ofthe evidentiary position changing, a reasonableobserver would note that the trial judge’sfinding of fraud was otherwise expressedwithout qualification or doubt, that it wasbased on actual persuasion of the correctnessof that conclusion, that while the judge did notuse violent language, he did express himself interms indicating extreme scepticism aboutBATAS’s denials and strong doubt about thepossibility of different materials explaining thedifficulties experienced by the judge, and thatthe nature of the fraud about which the judgehad been persuaded was extremely serious. Inthe circumstances of the instant case, areasonable observer might possibly apprehendthat at the trial the court might not move itsmind from the position reached on one set ofmaterials even if different materials werepresented at the trial, that it might not bring animpartial mind to the issues relating to thefraud finding. It followed that the fourthrespondent would be prohibited from hearingor determining the first respondent’s claim.

Per French CJ (dissenting). The fair-minded layobserver aware of the circumstances in whichthe fourth respondent made his finding againstBATAS and the qualifications which heexpressed in relation to it, would not have anapprehension, firmly established on reasonablegrounds, that he might undertake the trial ofthe first respondent’s claim other thanimpartially. The fair-minded lay observer wasaware: that the fourth respondent made hisfinding of fraud in dealing with a disputeabout whether legal professional privilegemeant that certain material could not be usedin the earlier proceedings; that his finding wasmade in 2006 and that the motion for hisrecusal was brought in 2009 in subsequentproceedings; of the content of the fourthrespondent’s reasons for the ruling on thematter of legal professional privilege and theinformation conveyed by those reasons,including the information they conveyed aboutthe nature of the proceedings and the fact thatthe ruling was not a final determination offraud in relation to the document retentionpolicy for the purpose of the earlierproceedings; and of the qualifications stated bythe fourth respondent in relation to hisfindings. The salient features of his findingagainst BATAS would be apparent to the fair-

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minded lay observer without assistance fromspecial knowledge of the law, the Tribunal orthe rules of practice and procedure. He made itclear that he was not making a finding whichwould stand, come what may, as a finding attrial. The observer would need nounderstanding of the rules relating to theadmissibility of hearsay evidence ininterlocutory proceedings to come to thatconclusion. The fourth respondent qualifiedhis finding of fraud by his statement that hewas persuaded to that finding ‘on the presentstate of the evidence’ and his reference to thedecision by BATAS not to call any rebuttalevidence in the interlocutory proceedingscarried with it the clear implication, which anobserver would not require a law degree todraw, that it would be open to BATAS to callrebuttal evidence at trial. On that materialalone, the fair-minded lay observer would notconclude that there had been firmly establisheda reasonable fear that the fourth respondent’smind was so prejudiced in favour of his findingof fraud that he would not alter thatconclusion irrespective of the evidence orarguments provided to him in the trial of thefirst respondent’s claim. That the judge mightbe led to decide the case other than on its legalmerits would require the observer to give noaccount to the express qualifications made bythe judge in his findings in the earlier ruling.Even allowing for a reasonable scepticismabout human nature, there was nothing in theinstant case to warrant the view that the fourthrespondent’s disclaimers were simply to be putto one side as having little or no weight. As ageneral rule, a judge’s own explanation forrefusing a recusal motion would not assist indetermining whether the facts andcircumstances upon which the judge’s ruling

was based were such as to give rise to areasonable apprehension of bias in the mind ofa fair-minded lay observer and thus, in theinstant case, the fair-minded lay observer wasnot assumed to have had regard to the reasonsfor the fourth respondent’s judgmentdismissing the BATAS motion for his recusal.

Per Gummow J (dissenting). There could havebeen no objection to the fourth respondenttrying the dispute in the earlier litigation uponsuch evidence as then was presented,notwithstanding his ruling on the discoveryapplication. A fortiori, should the firstrespondent’s claim go to trial, the fair-mindedlay observer would not, upon the basis of theearlier litigation, apprehend that the judgewould not bring an impartial and open mindto the resolution of the issues in the trial of thefirst respondent’s claim. For the observer therewould be lacking the necessary logicalconnection between the 2006 reasons and thetrial of the first respondent’s claim to supportsuch an apprehension. Moreover, theunderstanding to be attributed to the layobserver depended upon the circumstances. Inthe instant case the reasoning of the judge waslaid out in the 2006 reasons and explainedfurther in the reasons on the recusalapplication. The hypothetical observer, uponreading the 2006 reasons, would appreciatethat the fourth respondent was qualifying hisconclusions by emphasising that if the sameissues arose at a later stage he would decidethem on the evidence then led by the parties.The reasons on the recusal applicationunderscored the point that there was not theineradicable apprehension of prejudgment ofwhich BATAS complained.

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CALL FOR PAPERSThe Commonwealth Judicial Journal (CJJ) is the flagship publication of theCommonwealth Magistrates’ and Judges’ Association and has a readership ofjudges, magistrates and other legal practitioners from the Commonwealth andbeyond. The CJJ invites submissions of manuscripts on various aspects of the law,in particular manuscripts focusing on the judicial function at the domestic, regionaland/or international level.

Essays, book reviews and related contributions are also encouraged.

Please read the following instructions carefully before proceeding to submit amanuscript or contribution.

Contact DetailsManuscripts sent by email, as a Word document, are particularly encouraged. Theseshould be sent to: info@cmja.org

Alternatively, manuscripts may be sent by post to: CMJA, Uganda House, 58-59Trafalgar Square, London WC2N 5DX, United Kingdom.

Information for Authors1. Manuscripts should ideally be submitted in Microsoft Word format.2. Articles should include a 200-word (maximum) abstract.3. Submissions should be accompanied by details as to whether the manuscript

has been published, submitted, or accepted elsewhere.4. Manuscripts should normally range from 2,000 to 3,500 words in length.5. Any references and/or citations should be integrated in the main body of the

manuscript, as footnotes/endnotes will normally be removed.6. The CJJ encourages authors to refer to material from one or more

jurisdictions across the Commonwealth.7. All manuscripts received are evaluated by our Editor in consultation with the

Editorial Board. Notification of acceptance, rejection or need for revision willgenerally be given within 12 weeks of receipt of the manuscript, althoughexceptions to this time frame may occur. Please note that our evaluationprocess takes account of several criteria, including the need for a balance oftopics, the CJJ’s particular areas of interest which may change over time, etc.,and this may also influence the final decision. Therefore, a rejection does notnecessarily reflect upon the quality of a piece. The Editorial Board retains thediscretion as to whether or not an article may or may not be published.

8. Please note that by submitting an article or other contribution forpublication, you confirm that the piece is original and you are the author orco-author, and owner of the relevant copyright and other applicable rightsover the article and/or contribution. You also confirm that you are thecorresponding/submitting author and that the CJJ may retain your emailaddress for the purpose of communicating with you about the article. Youagree to notify CJJ immediately if your details change.

9. Please note that the CMJA retains the copyright of any articles once these arepublished in the Journal but in the interests of the widest dissemination, theCMJA may authorize publication of the articles in other appropriatepublications.

COMMONWEALTH MAGISTRATES’ AND JUDGES’ ASSOCIATION(Registered Charity 800367)

AIMS• to advance the administration of the law by promoting the independence of the judiciary;

• to advance education in the law, the administration of justice, the treatment of offenders andthe prevention of crime within the Commonwealth;

• to disseminate information and literature on all matters of interest concerning the legalprocess within the various countries comprising the Commonwealth.

MEMBERSHIPAssociations of the judiciary of Commonwealth countries are Members whilst individualmagistrates, judges and court administrators may become Associate Members

ACTIVITIESPan-Commonwealth Conferences; Regional Meetings and Workshops facilitatingcommunications and co-operation between the different countries of each region; Study Toursand Exchange Visits; Judicial education seminar

PUBLICATIONS“The Commonwealth Judicial Journal” and the “CMJA News” (both twice yearly andcomplimentary to members); Reports of proceedings of major conferences and seminars;specialised information books on particular topics (printing of copying costs may apply)

APPLICATION FOR ASSOCIATE MEMBERSHIP

Name: ................................................................................................................................Address: ......................................................................................................................................................................................................................................................................................................................................................................................................................Judicial position: ..................................................................................................................

Annual Subscription @ £30.00 / 3 Year Membership @ £75.00 /5 Year Membership @ £120.00 / 10 Year Membership @ £220.00

Life membership @ £500.00

CMJA Tie (s) @ £10.00 eachCMJA Cufflinks @ £10.00 eachCMJA Lapel Badges @ £5.00 eachCMJA Key Fobs @ £4.50 each CMJA Plaque @ £19.50 each: SALE PRICE £15.00

Memorabilia: packing/postage charge of £1.50 per order

I enclose my cheque for £….......... (prices include postage)

Signed……………………………………. Date…………………………………..

Please send this form and payments to:The Secretary GeneralCommonwealth Magistrates’ and Judges’ AssociationUganda House, 58-59 Trafalgar Square, London WC2N 5DX, United Kingdom

Cheques and banker’s drafts should be made payable to “CMJA”. If you wish to pay by creditcard (Mastercard, Access or Visa) please give card holder’s full name, billing address, cardnumber and expiry date. Also please state whether it is a Visa, Access or Mastercard. Therewill be a 2.45% surcharge on all credit card payments.

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YOU CAN NOW REGISTER ONLINEBOOK YOUR PLACE NOW!

Commonwealth Resort and Conference Centre,Munyonyo, Kampala, Uganda

www.cmja.org/cmja2012

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