Recusal is the action of a judge to remove himself/herself from the hearing of a case because of potential conflict of interest. The saying “justice must not only be done, it must be seen to be done” has become cliché. Yet it rings true. A party who loses a case in court will want to walk away knowing that the case was determined with absolute fairness.
This is where the doctrine of recusal of judges comes from. If there is any reason that may make a judge biased, then it is a reason for the judge to step down. The judge may step down on his/her own volition, or on the application of a party.
Gladys Boss Shollei v Judicial Service Commission
The former Chief Registrar of the Judiciary was entangled in a legal tussle with the Judicial Service Commission (JSC). The matter reached the Supreme Court but the commission was uncomfortable with the matter being decided by the apex court.
It asked several judges to recuse themselves either because they were members or former member of JSC itself, or had pending disciplinary cases at the JSC. There was one problem with that: if the judges recused themselves, the court would not have quorum to hear the case.
The court declined to allow the application and said there was no reason why they needed to recuse themselves. But it is the concurring opinion of Justice Ibrahim that shed light on their reasons.
Doctrine of Necessity and the Duty of a Judge to Sit
Justice Ibrahim quoted Jasbir Singh Rai and Another v. Tarlochan Singh and 4 Others  eKLR where the court alluded to the doctrine of necessity. He used this case to argue that it was absolutely necessary for the court to hear the case because by the nature of the constitution, at least two members of the court would also always be members of the JSC. He argued that it was also obvious that the Supreme Court could have former members of the JSC. Forcing recusal would therefore be shielding the JSC from the court almost permanently, which is an unjust outcome.
The judge also emphasized on the duty of a judge to sit. He quoted Justice Rolston F. Nelson of the Caribbean Court of Justice in his treatise – “Judicial Continuing Education Workshop: Recusal, Contempt of Court and Judicial Ethics who wrote:
“A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the one hand, the judge must consider that self-recusal aims at maintaining the appearance of impartiality and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason.”
Judges, being members of the society will always find situations where there may be conflict of interest. It is expected that in answering the question of whether or not to recuse themselves they will be faithful to their oath of office and to the cause of justice.
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