The Avid Readers’ Forum (ARF) conducted a session on 12 February 2025 to discuss the duty of lawyers to criticize judges based on an article written by Prof Lonnie T Brown. The session featured two panelists, Mr Ochiel Dudley and Mr Ian Mathenge. Mr Ochiel is a prominent litigator and head of Dispute Resolution at Bond Advocates LLP, while M Mathenge is a well-known academic and an associate at Gibson, Dunn & Crutcher LLP. The session was moderated by Ms Monica Loko, a final-year law student at Kabarak Law School, and co-moderated by Ms Ruth Jebet, also a final-year law student.
During the discussion, the moderator, Ms Loko, introduced four key questions:
- Why is it the duty of lawyers to criticise judges?
- What are the available methods for objectively and professionally criticising judges?
- Which methods can be considered the most professional?
- Are there any laws or restrictions on how lawyers can criticise judges?
Mr Dudley began by asserting that it is indeed the duty of lawyers to criticise judges, likening it to the saying, ‘you need to set a thief to catch a thief’. He explained that lawyers have a duty to the public according to Section 4 of the Law Society of Kenya (LSK) Act. He also emphasised that while judges have decisional and personal independence under judicial independence, they are still accountable and thus open to criticism.
On the second question, Mr Dudley outlined two options for criticising judges: lawful and unlawful mechanisms. Lawful mechanisms include writing articles and blogs and appealing for reviews of their judgments. He stressed that lawyers should do this ethically, as existing laws and restrictions aim to maintain public confidence in the judiciary. He referenced Section 56 of the Advocates Act, which outlines judges' powers regarding advocates' misconduct during proceedings, and Article 33 of the Constitution of Kenya, which covers the right to freedom of expression.
Mr Mathenge followed with his thoughts on the recusal of judges and whether judges should participate in their own recusal cases as jury and decision-makers. He discussed the principle of necessity and the need to balance impartiality with the right to be heard. He noted that Kenyan judges often have significant discretion, as provided by the law.
When asked whether lawyers should act as ‘loose cannons’ in criticising judges, Mr Mathenge stated that lawyers should not spread false information. He outlined two tests: an objective test to determine if a reasonable person could have made the same statement, and a subjective test to assess whether the lawyer genuinely believed what they were saying. He expressed that current legislation regulating lawyers' conduct is outdated, especially with modern trends like social media. He stressed that lawyers should not be punished for their opinions, but for stating false facts. Other lawyers should correct wrong statements to prevent misconceptions, and statements of fact should be supported by evidence.
Attendees, both in person and online, actively participated in the discussion with questions and concerns. One notable concern was the divide between senior and junior colleagues in the legal profession, where seniors often look down on juniors who defend judges against unjust criticism. The panelists emphasised that ethics should guide interactions, and seniors should respect juniors' opinions to minimize the rift. Another concern was the binding nature of the codes of conduct for advocates, which the panelists agreed are binding and can lead to action against advocates who violate them, as referenced in Section 56 of the Advocates Act.
In their closing remarks, the panelists highlighted that criticizing judges is not inherently bad, but should be done in a manner that ensures the criticism is constructive. This would strengthen judicial independence and accountability while promoting advocates' freedom of opinion. The session concluded with a vote of thanks and closing remarks by Mr Elisha Ongoya, the ARF convener.
