Waiver and the public interest

EDITOR: Waiver is one of two fundamental exceptions to the doctrine of bias (the other being necessity). If, as a litigant, you become aware of any information which makes you think that a judge might be biased, you are to raise an objection as early as possible and ask that the matter be heard before another judge. If you fail to act at an early stage the court can take it that you have waived your right to complain of bias at a later stage.

In a publication entitled “Waiver of the rules against bias”, Dr Matthew Groves, professor of law at Monash University in Australia, stated the following. “There is strong public interest that claims of bias are made at the earliest possible time. This minimizes delay, expense and inconvenience for the parties and the court”. The same can also be said for the application of waiver.

In Outa v Okello in the Supreme Court of Kenya, a judge said: The public interest coincides with the constitutional principle that public money shall be used prudently.

Waiver is also said to enhance public confidence in the judicial system, because it promotes finality in legal proceedings. Public interest is therefore not an abstract issue. There are real and objective manifestations of public interest. Waiver, therefore, promotes public interest by controlling delay, cost, inconvenience and enhancing public confidence in the system of justice.

Prominent Ugandan human rights lawyer Nicholas Opiyo stated the following: “The delay in disposing of election petitions causes uncertainty among voters and MPs in performing their parliamentary functions due to cases in court”.

Litigants/petitioners should not be allowed to come to the court with some cards turned up and some down (that is poker). The court cannot countenance gambling with the judiciary nor judicial ambush.

In the two following cases petitioners were prevented from raising objections at a late stage, since they did not do so at an earlier time when they had the chance.

– Onifade v Oyedemi (1999) (Nigeria)

– Joel Nyabuto Omwenga & 2 others v Independent Electoral and Boundaries Commission & another (Kenya)

It is also important to note the following caution by Sir. Louis Blom-Cooper: “Lord Hewart’s statement that justice must not only be done but must be seen to be done could be taken too far. Too much emphasis on the appearance of justice might distract attention from the substantive question of whether what had truly occurred was fair”.

I find the recent ruling of the Court of Appeal in our election petition cases to be troubling for the following reason. It is a given in most, if not all common law jurisdictions, that election petition rules are mandatory. The court can only bend or modify these rules if parliament expressly gives it the power to do so. If the ruling of the Appeal Court (OECS) is to take root, it means that a judge, acting in the name of some abstract and esoteric phenomenon called public interest, can decide that an election petition cannot be struck out, even after petitioners and their lawyers would have disobeyed every election petition rule.

Concerned Vincy