Wakoli Sam (Mount Kenya University, Parklands Law Campus; Kenyatta University School Of Humanities And Social Sciences, Kenya) has posted Impartiality in Judicial Decision-Making: Personal Bias as an Inherent Factor in Judicial Judgments on SSRN. Here is the abstract:
“Judges do not go to heaven at night and come down to court in the morning.” Justice Richard Goldstone, a former judge of the Constitutional Court of South Africa and a prominent international jurist, made the following statement. With a focus on the inherent nature of personal bias among judges in Kenya and around the world, this paper seeks to critically analyze the extent of personal bias and the way Judicial decisions cannot be devoid of any form of bias. This paper, therefore, examines various types of personal bias and their impact on legal reasoning, while questioning the sanctity of justice from both litigants’ perspectives, regardless of whether it involves favourable or unfavourable bias.
The prevailing view in this discourse is that judicial decisions should not be influenced by any form of conscious or unconscious bias, regardless of whether the biases favour one party to a suit or both. Therefore, the following research questions are raised: Is this prevailing view grounded in practical reality? (That judicial decisions should not be influenced by any form of conscious or unconscious bias) Is absolute impartiality an attainable standard for judges in the exercise of their duties? What is the acceptable form of bias in judicial decision-making? Is the presence of inherent bias in a judge’s decision sufficient to render a judgment unjust? When does the legitimate exercise of judicial discretion give way to the impermissible influence of personal bias by judges?
The blindfold on The Lady of Justice symbolizes that justice should be impartial, unbiased, and fair to everyone, regardless of their wealth, power, or social status. It signifies that judges and the legal system should not be influenced by external factors or personal prejudices when making decisions, but instead rely solely on the facts and the law; however, I contend that the lady of justice can slightly see through the blindfold, and that it is practically impossible for a judge to be impartial.