Waiver of the right to judicial impartiality: comparative analysis of South African and Commonwealth jurisprudence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127138 , vital:35960 , https://0-hdl.handle.net.wam.seals.ac.za/10520/EJC153154
- Description: This paper investigates whether judicial independence and impartiality entrenched in written constitutions and recognised by the common law as fundamental requirements of fair administration of justice can be subjected to the private law principles of waiver, estoppel or acquiescence. In an attempt to answer this question, the paper suggests that the starting point should be the interrogation of whether the right alleged to be waived emanates from the constitution or administrative law. At common law, a right can be waived, insofar as the party involved had knowledge of the right and failed to assert it.
- Full Text: false
- Date Issued: 2013
Judicial intervention in Kenya's constitutional review process
- Authors: Juma, Laurence , Okpaluba, Chuks
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128412 , vital:36107 , https://heinonline.org/HOL/Page?handle=hein.journals/wasglo11amp;div=13amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: The constitutional reform process in Kenya, which culminated in the promulgation of a new constitution in August 2010, has been a subject of much study and scholarly deliberation.' That it ended on a rather positive note as compared to those in Zambia, Malawi, and even Zimbabwe, is seen by many as proof that Africans could, after all, redesign their constitutional frameworks to weed out moribund structures and entrench systems of democratic governance. But the Kenyan experience also indicates a rather unfortunate trend where constitutions are never allowed to grow or mature with statehood.
- Full Text: false
- Date Issued: 2012
Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129093 , vital:36217 , https://hdl.handle.net/10520/EJC122974
- Description: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.
- Full Text: false
- Date Issued: 2011
The dialogue between the bench and the bar: implications for adjudicative impartiality
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129078 , vital:36215 , https://hdl.handle.net/10520/EJC53998
- Description: What is the role of the judge in the conduct of a trial? Can he or she engage counsel in legal argument and ask questions on legal issues without breaking the brittle bond of justice or be said to have 'descended into the arena'? Assuming that these actions are permissible, at what point will the judge's dialogue with counsel or line of questioning go beyond permissible limits? These are the questions with which this article grapples. Based on an analysis of the Constitutional Court decisions in State v Basson (2) 2007 (1) SACR 566 (CC) and Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC), and several Supreme Court of Appeal and other Commonwealth decisions, the article explores the circumstances in which the recusal of judges has been sought, or judicial decisions have been challenged on appeal on the basis of an allegation that there have been violations of the principle of fair hearing as enshrined in the Constitution. The article draws on the 'apprehension of bias' jurisprudence to establish the utility of the presumption of impartiality and the hybrid test of double-reasonableness in contexts where a judge's conduct is in question. The article concludes that the dialogue between the bench and bar is a useful component of adjudication in our adversarial system and should be limited by the rules of impartiality only in very exceptional circumstances.
- Full Text: false
- Date Issued: 2011