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Who will judge the Judge?

According to my East African tribe’s traditional grassroots justice delivery system, when an elder is found “guilty” of misdeed in a public trial that involves a younger kin, the verdict of a panel of local judges was always simply: “Gwasinga enyomyo” – meaning the pillar has lost (the case). 

In our customary living house structural engineering practice, this pillar in question is specific. It is “eyengambilo” –literally (the pillar) of the declaration. That is the main one. And normally upon this verdict declaration, some silence was observed. Nothing else happened immediately thereafter. But the judgment stood for a reminder to the elder as it was a lesson to the kin.

Tradition also demanded that the kin is ordered to bear token costs of the trial as a deterrent to other family members in the kinship network. While elders are called upon to be careful with how they conduct themselves, the youth are impressed upon to think twice before they subject their elders to public trial. 

Then it was life as usual just like nothing had happened.

This experience of my youth days in the traditional setting, came back to my mind when I came across the International Association of Judges (IAJ) statement trying to labour upon defending a decision by the President of the European Court of Human Rights (ECHR), Robert Spano, to accept an honorary doctorate (in law)  from the University of Istanbul in Turkey. 

sopano erdogan

Established 67 years ago as a professional, non-political, international organization of national associations of judges to promote the Rule of Law and the Judiciary Independence, the IAJ argued that ECtHR President Robert Spano acceptancy “should not be interpreted as an endorsement of the actions taken by the current government of Turkey”.  It is held to be the oldest and most prestigious international organization of judges.  If you are not here, you are not there yet. 

As seasoned sub-editor, from the outset, I was disturbed by the way the words “acceptance” and “acceptancy” were used at will when, strictly speaking,  one is not the substitute of the other. As a noun, “acceptance” is the action of consenting to receive or undertake something offered or the process of being received as adequate, valid or suitable. “Acceptancy”, also taken as a noun, denotes willingness to accept or receive. 

In other words, one is absolute and, therefore, not subject to debate. This is the concept of “acceptancy” – never mind its being used rarely. The other, “acceptance” as the action, is relative, and therefore, subject to debate. It is subject to a mode and that is the bone of contention the world has with the ECHR President Robert Spano over (his acceptance to) the visit to Turkey, spiced with a honorary degree from Istanbul University. This has implications on the good name of the Court and himself as head and judge by profession and practice.

With due respect to the IAJ stance, there are still several genuine stages building up a strong case for the worldwide criticisms that emerged. I am not a lawyer. I don’t even possess a certificate in law. But I have a profession, in respect of which there must be accompanying ethics. For every profession there is ethics. 

In journalism we are called upon to be objective. We have no side in a story. When writing, we are not supposed to insert our opinions. When there are two sides to the story, each should be heard and must be given equal treatment in the outlet. We have to balance our stories. We are advised to keep away from political leaders, tycoons and the like to avoid ‘being put in their pockets’ and other potential risks.

While enlightening myself on what is ethically expected of judges, I found out that along the similar lines in our journalism professional practice, the judges have to maintain independence, impartiality and avoid impropriety or even its appearance.  

It is here that I remembered an observation made by the late Father of the Nation in Tanzania, Julius Kambarage Nyerere. He said that for a leader, when it came to the question of corruption, even public suspicion alone was already bad enough to demand accountability. 

I remembered Tanzania’s Second Phase President Ali Hassan Mwinyi, now retired and in his early 90s. He accepted responsibility and resigned from the post of the Home Affairs Minister after more than ten inmates died in a police remand cell in a region to which he had not ever been before. President Nyerere accepted his resignation. Mwinyi went on to vie for and win presidency in a general election.

I further learned that when it comes to politics, the judges should not be swayed by partisan interests, public clamour or fear of criticism. Here is an issue for the judges to balance competing interests, be wise and sensitive, besides being knowledgeable also in economy, social security, sociology, psychology and the like. They have to be all-round, so to say. 

The problem here is that while psychology and sociology can be learned at school, wisdom and being sensitive have yet to find a key for entry into the education curriculum development books of any country on earth. This leaves us with self-regulation as the key. This is why, in this case, we find ourselves with questions like: “Who will judge the Judge?”

President Robert Spano acceptancy to the offer of a honorary degree was perfect. But his acceptance was lacking. After accepting the offer, he should have done his homework. A decision to offer a honorary degree is made by the highest academic and administrative arm of respective institutions of higher education. The present highest governing body of Istanbul University is a product of post-2016 coup security of emergency declarations. What does Spano have to share with them?

Fellow journalist Mehmet Altan, his academics status and civil treatment aside, sent a message to Spano saying: “I’m not sure how gratifying it would be to become an honorary member of a university which has unjustly kicked out and forced into unemployment and poverty hundreds of academics”. Could Spano have gone to the Istanbul University to remember the dismissed more than 6,000 academics? I doubt. 

The official visit was at the invitation of the Turkish Justice Minister, Abdulhamit Gul, between 3-5 September, 2020. He was accompanied by national judge of Turkey and deputy section registrar at the Court.  A little bit of study should have revealed a serious threatening condition of what can be called as Civil death –as a product of a “sui generis” presidential system established after the 2017 constitutional amendments.

The timing was wrong. At the 24th Term Training of prospective judges and prosecutors’ session, Robert Spano delivered a speech titled: “Judicial Independence – The Cornerstone of the rule of law”.  Basak Cah, human rights scholar, said Spanos speech at the Justice Academy did not expose the tragic state relating to the big number of ex-Turkey complaints before the Court.  

Wondering about the importance of the visit to the Academy, another expert asked: “Could it have been in memory of 4,260 purged judges and prosecutors?” I doubt this one either. Reports reveal judges taking up offices with a less than four-year experience! They are yet to be worth the ‘wig’.

What happened that Robert Spano found himself meeting the trustee of Mardin Municipality? Was it to remember the arrests of thousands of HDP opposition party members and replacement of elected opposition party mayors in defiance of the verdict of people’s decision through the ballot box? I doubt this as well.  People can vote but the regime decides who will rule.

Utmost one can see the ECHR chief being caught in an itinerary trap, the like of a “dema” used by traditional fisher folk on the western rim of the Indian Ocean in East Africa. Otherwise, where could he find time for discussions with top government officials and not a single minute for individual or group human rights activists? He was caged. It is wrong to compare the Spano visit to Turkey with Bible stories of Christ dining with sinners. Spano is not a prophet. He is human. He can err. The ECHR pillar has lost the Turkey visit case. But the common Turkish people are paying the costs. Who will judge the judge?

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Felix Kaiza is a Tanzanian journalist with more than 50 years of experience currently working as an independent media consultant. Learned in agriculture, journalism, political science and international relations, his main fields of consultancy, besides the media, are good governance, nature conservation, tourism and investment. He was the first Tanzanian Chief Sub-Editor of an English daily newspaper in 1970, he has been behind the establishment and growth of the national independent media since the early 1990s. He is UNFAO Fellow Journalist since 1975 and has wide experience on regional integration. He worked on the Information Directorate of the original East African Community on whose ashes survive the current one. His ambition is to brand Tanzania in the inbound market with made-in-Tanzania brands, including information, almost all of which is currently foreign brewed.

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