How far must an employer go to help a staffer with alcohol addiction? At what point is dismissal appropriate? Kenya’s high court had to consider this problem in relation to a senior magistrate who was given his marching orders by the Judicial Service Commission after he had been drunk on duty.
The question of how to deal with judicial officers who are drunk or addicted to alcohol has often proved difficult to resolve.
One evening during 2007, for example, South African high court judge Nkola Motata crashed through the boundary wall of a private residence with his luxury Jaguar. The judge proceeded to berate the owners of the house in a drunken, racist rant about the place of white people in South Africa.
Though he was convicted and sentenced in the high court during 2009, the Judicial Service Commission appeared unwilling or unable to take further action. It was only in October 2019 that the commission decided the now-retired judge was guilty of ‘misconduct’, and fined him a year’s salary.
If the JSC had found Judge Motata guilty of ‘gross misconduct’ he would have faced impeachment and could have lost one of the most significant perks of a judge’s job, namely being paid a full, current judge’s salary for life.
Both the length of time taken to resolve the matter and the lenient finding by the JSC provoked strong criticism in the media last month.
The Kenyan courts have just decided a matter that is also based on alcoholism, but in this case the matter has been resolved far more quickly.
It concerns Simon Rotich, an advocate who was employed first as a district magistrate and then senior principal magistrate.
During January 2015 he was ‘interdicted from duty’ for being ‘habitually drunk during working hours’, something that was held to ‘compromise (his) integrity and capacity to perform judicial duty.’ When the JSC met and considered his case they considered dismissal, but instead gave him a chance to rehabilitate himself. The commission accepted a medical report stating that Rotich had developed a potentially serious ailment due to 'excessive intake of alcohol and abuse of substance’.
Acting in a way later found to have been ‘considerate and humane’, the JSC lifted the interdict against Rotich and urged that he change his ways. He was sent for rehabilitation and then transferred to another station so he could make a fresh start. But he was also ‘sternly warned’ that this was his last chance and he should not ever again commit acts of gross misconduct or fail to live up to the proper decorum expected of an officer of the court.
'Four tots of vodka'
For a while all went well, but a year later he was again admonished by the JSC over his behaviour. The chief registrar of the judiciary noted that he had reported for duty while under the influence of alcohol, something that had forced the chief magistrate to remove him from cases he was scheduled to hear, and to arrange for his colleagues to take over the work.
Asked for his side of the story, Rotich said he had finished his court work by lunch time on the relevant day and had drunk four tots of vodka during his break. Afterwards, when he went back to his chambers, he found an urgent matter had been given to him, and felt he was not in a position to handle it. He admitted that he had not been able to serve a member of the public because of drunkenness. Also, he said that he had been drunk during office hours as well as drunk in his chambers and thus had been taken off the court roll for several days.
However, he had seen his doctor who told him that his drunkenness ‘was actually a disease’ that rehab on its own could not cure. The only way to deal with it successfully was to have an implant that would make him extremely sick if he were to drink again.
He had had the implant the day after taking the four tots during lunch time, and had not had a single drink since then. Rotich then pleaded with the JSC to give him another chance. When the commission decided on dismissal, Rotich went to court with a number of complaints about how the matter had been handled, and urged that he get his job back.
The JSC made the most basic of mistakes in its reply, filing a draft – a document neither signed nor commissioned – that the court held should be struck out.
Judge Byram Ongaya agreed that the Chief Justice should have drawn the charges against Rotich and led the interdiction. Since interdiction was outside the power of the commission, half of the magistrate’s salary, withheld during the interdiction, had to be repaid to him.
The court also agreed with Rotich that under the constitution, every person was entitled to ‘reasons’ for an adverse administrative decision. This meant certain provisions in the schedules to the Judicial Service Act were unconstitutional because they provided that a judicial officer ‘shall not be entitled to reports or recorded reasons for decisions’.
His complaint that due process was not observed in his disciplinary hearing was rejected by Judge Ongaya.
And then came what was perhaps the most interesting part of the decision: what would the judge’s attitude be to Rotich’s underlying alcohol problem?
‘The Court is alert to the menace of substance abuse and the devastating effects on the helpless victims,’ wrote Judge Ongaya. He was aware that employers were expected to assist such ‘helpless employees’ with care, rehabilitation and resumption of normal life. However, though Rotich was helped by the JSC, he had shown ‘dim chances of ever improving’.
Given his senior position, the JSC was concerned about exposing him any further to ‘unsuspecting members of the public’. Judge Ongaya agreed: Rotich had been given a chance to redeem himself and ‘all the reasonable support expected of a good, caring and compassionate employer’, but he did not take the opportunity.
The JSC and the chief registrar were to be commended rather than condemned for all their efforts to help him.
The court’s final decision was that it would not set aside the dismissal. However, contested sections of the schedules to the JSC Act were declared unconstitutional and the Attorney General was to ensure ‘appropriate legislative interventions’. Further, Rotich was to be paid the half salary withheld from him during his period of interdiction. In addition, half of his legal costs were to be paid by the JSC and the chief registrar of the judiciary.