An Analysis of the judicial code of conduct and ethics and the vetting process of judicial officers from a virtue ethics perspective
Date
2015
Authors
Andayi W. Francis
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
The Judicial Service Code of Conduct and Ethics (JSCCE) for the Kenyan judges and magistrates collectively referred to here as judicial officers, is an ethical guide for the successful delivery of their judicial duty. Judicial ethics as represented in the JSCCE appears to follow two main ethical approaches, deontology and consequentialism or utilitarianism. Questions abound on the success of these ethical approaches to positively influence the conduct of judicial officers and provide the requisite ethical guidance. Judicial officers continue to receive condemnation from varied qum1ers for failing to follow the path of rectitude within and outside of their judicial calling. The demand by Kenyans that under the new Constitution of Kenya 20 I 0 all serving judicial officers undergo a vetting process to determine their suitability to continue serving in the judiciary is testimony to the low level of test the public has in the judicial officers. To address this challenge this study explored how the virtue ethics approach, as an alternative to deontology and utilitarianism, can be utilized as a foundation for judicial ethics. The aim of this study therefore is to determine whether the vi11ue ethics approach, which is agent centered and opposed to deontology and consequentialism, which are action-focused, can be applied to the JSCCE and the vetting process to make better judicial ethics in Kenya. The vi11ue ethics approach is approp1iate for this study because of its recent resurgence in ethical theme as well as its appeal to beliefs, emotions, thoughts, and values instead of actions and consequences which are influenced by a system of rewards and punishment. The study applied a content analysis method to analyze the contents of the JSCCE and the vetting process, which are two areas of focus on judicial ethics in Kenya, to uncover the elements of virtue ethics espoused therein. The study found that there are some 20 elements of virtue ethics found in the JSCCE and the vetting process. These are justice, courage, independence, practical wisdom among others. However, the presence of the elements alone was found not sufficient to make virtue ethics the theoretical base for judicial ethics in Kenya for two reasons. First, the elements are limited in scope in the JSCCE. Second, the elements are not expressed in virtue ethics language but rather they are formulated as rules and principles in line with the deontological and consequentialist ethical frameworks. However, it also emerged that with proper articulation of the JSCCE and the vetting criteria, the principles and rules can be reformulated to take account of a virtue ethics approach and thereby embed it as a sound theoretical base for judicial ethics in Kenya. The study made suggestions and recommendations on the ways through which judicial ethics can take account of virtue ethics and how to align the .TSCCE and the vetting process to each other through the virtue ethics approach to improve on judicial ethics and ultimately the conduct of judicial officers in Kenya.
Description
Submitted in partial fulfillment of the requirements for the Degree of Master of Applied Philosophy and Ethics (MAPE)