The Concept of the Independence of the Judiciary

 

CONCEPT OF INDEPENDENT JUDICIARY

 

Judicial independence is widely considered to be a foundation for the rule of law. It is also an essential component of separation of powers. It is therefore imperative for us to have an understanding in the meaning of this concept.

 

In the previous topic on separation of powers, we clearly saw that state power cannot all be concentrated in one institution to be exercised by the very institution on behalf of the people. Instead, we ought to deposit the governing power in the hands of representatives, basically who are agents of the people. It is based on this notion that concept of separation of powers as a tool, is used to disperse power into different divisions each having unique functions to be exercised by different branches of government. Each of the branches has different representation structures that can check and balance each other.

 

One of these branches is the judiciary. Following the Montesquieu concept of separation of powers, the judiciary should be independent from interference by all the other organs or branches of government, thus on the one hand, structural independence of the judiciary. On the other hand, there is also substantive independence of the judiciary. It is from this background that one seeks to understand the concept of independent judiciary.

 

Defining the concept   Judicial Independence

This is a concept that can be defined in various ways.[1] Some scholars have produced long lists of criteria the judiciary must meet; others focus on more narrow aspects of judicial institutions.[2] Despite which definition is adopted, it agreed that an independent judiciary has three characteristics;

 

1.     Impartiality

This means that judicial decisions are not influenced by the judge’s personal interests in the outcomes of a case. This also implies that judges are not appointed because of their political views but are appointed on merit.

 

In terms of being impartial, judges are required to recues themselves whenever there is conflict of interest between them and the parties before them. The test of determing the imaprtilaity of judges was expounded in the American case, Perry v. Schwarzenegger, 671 F. 3d 1052 (9th Circ. February 7, 2012) where it was held that the test for establishing a Judge’s impartiality is the perception of a reasonable person, this being a “well-informed, thoughtful observer who understands all the facts”, and who has “examined the record and the law”; and thus, “unsubstantiated suspicion of personal bias or prejudice” will not suffice.

 

In R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.1) [2000] 1 A.C. 6, the English House of Lords [now the Supreme Court] had just rendered a judgment when it became known that a member of the collegiate Bench involved, was an unpaid director and chairman of Amnesty International Charity Limited, an organization set up and controlled by Amnesty International; and the same member’s wife was also employed by Amnesty International. In the said judgment, it had been held that General Pinochet, the former Chilean Head of State, was not immune from arrest and extradition, in relation to crimes against humanity which he was alleged to have committed while in office. The House of Lords, at the commencement of the hearing, had given permission for Amnesty International to join in as intervener. A newly constituted Bench of five Judges held unanimously that the earlier judgment must be set aside, because one of the members of the Bench should have been disqualified from hearing the case; as that member had had an interest in the outcome of the proceedings.

 

Each judicial officer takes an oath to be fair and impartial.  This responsibility to be fair and impartial is the foundation of confidence in the decision making process.  Judges are expected to bring an impartial mind to the case before them hence what disqualifies a judge is the presence of some factor which could prevent the bringing of an objective judgment to bear which could distort judge’s decision. There must be also an appearance of being free from any influence as stated in the oft cited aphorism by Lord Hewart CJ in R v Sussex, ex parte McCarthy [1924] 1 KB 256, “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

 

1a. Duty of judges to Disclose

 

The duty of the judge to disclose was dealt with in Trust Bank Limited v Midco International Limited, HCCC 366 of 2001 (Unreported) where the court considered an application to set aside judgment on the ground that the judge who heard the application for summary judgment and allowed it had acted for the bank while in private practice. This fact was not disclosed at the hearing of the application for summary judgment. In setting aside the judgement, Hon. Justice Ibrahim (as he then was) held that as it is the judge who had knowledge and information about his past relationships in private practice, he was duty bound to disclose this fact.   The learned judge observed, “A party cannot be expected to know the clients of a Judge who has come to the bench from private practice.  It is the Judge presiding who ought to have known and also in this case, the Respondent.  It was their duty and obligation to have disclosed or declared the existence of a past relationship.   It does not matter now as to who may be to blame because there is a possibility that the Judge and the Respondent did not remember and that they considered it not to be significant.  Judges also deem such matters would not affect their impartiality due to their oath and their own sense of fairness, justice and conviction.   But as seen in the case law, it is not for the Judge to decide in his mind without declaring or disclosing the fact to the parties and for them to consider and decide what is good for them or the implications……. [A]s a result of the aforesaid non-disclosure of the past relationship between the Judge and the Respondent, the applicant was denied the opportunity to raise the issue or apply for disqualification on the grounds of prejudice and/or bias…”

 

The judge went on to say that, ‘I do not think that the extent of disclosure can be closed or itemised but in light of the test of disqualification for apparent bias, I think a proper approach for a judicial officer would be to disclose any facts or interest which may cause a reasonable apprehension of bias.’

 

 

2.     Recognition and respecting judicial decisions

Decisions once rendered by judges, should either voluntarily or through forced compliance be recognised and respected by parties to the case. Those with the powers to coerce compliance must be willing to use their power if voluntary compliance is not forthcoming. This may be argued that it is not an inherent aspect of judicial independence but it is not lost that if the enforcement agents were to ignore judicial decisions, the effectiveness of the judicial arm of government would be watered down.

 

In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:

It is essential for the maintenance of the rule of law and order that the authority and the dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.

The court holds precious the element of respect and obedience to its order. This was futher extrapolated in Wildlife Lodges Ltd vs. County Council of Narok and Another [2005] 2 EA 344 (HCK) where the Court expressed itself thus:

“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a Court of competent jurisdiction to obey it until that order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed…If there is a misapprehension in the minds of the defendants as to the reasonable meaning of the order, then the expectation of them is that they would have made an application to the court for the resolution of any misunderstanding and this would have been the lawful course…In cases of alleged contempt, the breach for which the alleged contemnor is cited must not only be precisely defined but also proved to the standard which is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt…The inherent social limitations afflicting most people in a developing country such as Kenya have the tendency to restrict access to the modern institutions of governance, and more particularly to the judiciary which is professionally run, on the basis of complex procedures and rules of law. Yet, this same Judiciary is generally viewed as the impartial purveyor of justice, and the guarantor of an even playing ground for all, a perception which ought to be strengthened, through genuine respect for the courts of justice, and through compliance with their orders. Consistent obedience to court orders is required, and parties should not take it upon themselves to decide on their own which court orders are to be obeyed and which ones overlooked, in the supposition that this oversight will not impede the process of justice…Justice dictates even-handedness between the claims of parties; and if it be the case that the plaintiff/applicant has not been accorded a level playing ground for the realisation of its economic activities, a matter that of course can only be established through evidence in the main suit, then the court ought to provide relief, by applying the established principles of law, one of these being the law of contempt

 

3.     Free from interference

This means that Parties to a case, or others with an interest in its outcome, cannot influence the judge’s decision. In practice, protecting judges from private persons with an interest in the case means preventing judicial corruption and coercion. Insulating judges from officials of other branches of government is often taken to be the most important aspect of judicial independence. Government poses perhaps the most serious threat to judicial independence for two reasons: it has a potential interest in the outcome of myriad cases, and it has so much potential power over judges.

 

In Africa, as Udombana[3] observes, the judiciary has been subjected to all forms of intimidation and persecution during its execution of its functions. This has had serious negative implications, more so during political transitions, where the harassment of judges ‘makes them look over their shoulders in the dispensation of justice’ and therefore decide in favour of the incumbent authorities. Taking cue from this observation, Ambani notes that the ultimate effect of the interference has been the sacrificial of democracy, good governance and human rights at the altar of political expediency.

 

Judicial independence is thus a very significant pillar of democracy and more so for negotiations of political transitions. During the 2007 general elections, Kenya was at brink of collapsing because the judiciary then could not be trusted to adjudicate the electoral/political quagmire the ensued after the elections.

 

Unlike Kenya, South Africa adopted a constitution that emphasized on judicial independence and has through practice, enforced this concept.  For instance, in the Certification case of the the South African Constitution, the judiciary through the constitutional court refused to certify the new constitution on among other grounds including that it restricted individual employers from engaging in collective bargaining and that it shielded statutes from constitutional review. The court while rendering the decision recognised its restricted mandate in terms of separation of powers by stating that;

 

The court has a judicial and not a political mandate. Its function is clearly spelt out in IC 71(2): to certify whether all the provisions of the NT comply with the CPs. That is a judicial function, a legal exercise. Admittedly a constitution, by its very nature, deals with the extent, limitations and exercise of political power as also with the relationship between political entities and with the relationship between the state and persons. But this Court has no power, no mandate and no right to express any view on the political choices made by the CA in drafting the NT, save to the extent that such choices may be relevant either to compliance or non-compliance with the CPs.

 

From the onset, South Africa judicial system has been independent and empowered to perform its functions without interference. Its success has also been based on the fact that the court has largely restrained itself from interfering with the other arms of government and in particular the executive.

 

Justice J.B. Ojwang while penning on the concept of independence of judiciary, paints its significance in relation to executive power in the following terms;

 

Such powers (executive powers) by their very nature, are not only ill-defined, but also far-reaching; and while in motion are so easily abused, or annexed for partisan, or personal ends! And whenever that happens, the resulting damage falls upon either the public interest, or the individual. Where the public interest is the sufferer, and it lacks the legal personality to seek specific redress, it becomes a diffuse public claim, to be resolved by the electorate at periodic elections, or to be scrutinized by the elected Parliament during its sittings.  But on many occasions, the victim of abuse of public power is the citizen.  The citizen has no capacity to move the nebulous electorate, or the cumbersome Parliament, to solve his or her grievance. It is the judiciary that comes in handy, as a structured institution, at which a claim can be lodged at the registry, and set for hearing before a court, within a determinable period; and the court is invested with jurisdiction and power to determine the question, and issue binding decrees.  The exercise of public power is accountable to the electorate and the legislature only in the long and medium terms; but in the short term, within the constitutional set-up, the individual can only look to the judiciary, for redress.

While  giving justifications as to why the citizens can only look up to the judiciary, as an institution of safeguard, Ojwang goes on to say this,

Firstly, the citizen has to trust that the court’s judgment has a finality, and is entitled to obedience, as a matter of constitutional obligation.  Then the citizen has to trust that the Judiciary shall be guided by rules, principles and discretions not influenced by the very power-wielders who cause oppression, or other harm.  That is to say, the citizen expects the Judiciary to be independent, in its decision-making.  And lastly, the citizen expects the Judiciary to be fair, in its decision-making. All these attributes underline one theme, independence, as the hallmark of the Judiciary, in a constitutional set-up that protects the citizen, as an individual, even as the nation’s broad social goals are pursued by the relevant public agencies, which are driven by a political-cum-administrative mandate.

 

In order to ensure judicial independence, Ojwang therefore argues that the judiciary must be well-anchored upon a foundation that does not flinch at pangs inflicted by the public power, nor pander to attractions of things allied to such power. He also observes that this concept is not only limited to the protection of citizens from abuse of power but that it also feeds into the general quality of governance, and of the interplays of the different organs of government.

 

R.W.M. Dias[4] while discussing judicial control in his works, Jurisprudence, noted in regards to judicial independence that;

 

The success or failure of judicial control of the abuse of power, whatever form such control may assume, depends on the judges being independent of those wielding the power.  Independence means far more than immunity from interference; it means that they are free to bring their own sense of values to bear in considering legislation and do not simply reflect the values of government.  For there can be no protection against abuse of power, even when safeguards are enshrined in the Constitution, if the judges who have to interpret these whenever the government is challenged are only puppets of the government.

 

Judicial independence as perceived, faces threats more from the executive than any other branch of government. In fact, as compared to other arms of government, the judiciary cannot be able to compete with an executive which has its roots in the legislature. To this end, Alexander Hamilton[5] says this of the American constitution,

Whoever considers the different departments of power must perceive that..the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution...the executive not only dispenses the honours but holds the sword of the community.  The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated.  The judiciary, on the contrary, has no influence over the sword or the purse; no direction either of the strength or the wealth of the society and can take no active resolution whatever.  It may truly be said to have neither Force nor Will but mere judgement.

 

Safeguarding judicial independence

In order to achieve and safeguard judicial independence, various safeguard approaches have been agreed which form part of the characteristics of the concept of independent judiciary.

 

i) The mode of appointment of judges;

ii) Providing for security of tenure for the judge;

iii) Collective concurrence on a candidate for appointment as judge;

iv) Commitment to the governing ethos of judicial independence;

      v) Absolute care in the regulation of terms of service and promotion, for judges

 

Lord Lloyd of Hampstead considered the application of these several criteria, in relation to his country, Great Britain.  He noted the following in relation to each of the foregoing five points:[6]

 

i) Experience shows that Great Britain has achieved the “development of a strong tradition in favour of ignoring political considerations when making judicial appointments^;

ii)   Judges hold office until retirement;

iii) Appointment of judges is the outcome of concurring opinions^;

iv) Operation of a governing ethos of judicial independence;

v)  A judicious approach to terms of service and to promotion;

 

and on this point, of promotion and terms of service, the learned author writes:

 

The question of promotion is almost as important as that of initial appointments in regard to judicial independence.  For if the judiciary has to look for its future prospects to the politicians they may be unwilling to incur executive displeasure and so mar the chances of later promotion, even though they are secure in their posts.  In England this difficulty has been largely overcome by avoiding too hierarchical a pattern in regard to the higher judiciary.  A certain uniformity of status has been retained in regard to all the higher judiciary from the High Court level to the House of Lords, particularly by keeping salaries on almost the same level throughout and by avoiding any form of promotion on the basis of seniority.  This system has been greatly aided by the historical antecedents of the English judiciary and its exceptionally strong traditions and long-established status

 

1.     The mode of appointment of judges

An independent judiciary, as Ambani correctly observes is a ‘watertights’ system that provides equal employment opportunities to all qualified persons without regard to one’s status, age, sex, race or political affiliation. The criteria for appointment of judicial officers should be objective and not subjective.

 

Judges including the chief and deputy chief justice are appointed by the appointed by the President (Article 166) in accordance with the recommendations of the judicial service commission and subject to approval by National Assembly. Their appointment is therefore an outcome of concurring opinions of the judicial service commission and the national assembly.

1a. education and experience qualification

The qualifications for appointment as a judge are set out in Article 166 (2), (3), (4) and (5). Further, the judicial service commission while recruiting judges is guided by the principle of competitiveness and transparency [Article 172 (2)]. Therefore, the process of appointment of judicial members is based on merit and not on political considerations as it were.

 

Educational requirements must be sufficient to assure that judges are able to perform their jobs effectively. On an elementary level, a legal system based on writings demands literate judges. Judges who cannot read the documents upon which the legal system operates would have to rely upon other individuals, inside or outside the court system, for information about their cases. Illiterate judges in essence would be delegating some of their decision making function to these third parties without the ability to review their work thereby compromising the independence of their mind which is required for dispensation of justice that is fair and just.  

 

In any legal system, judges must also have sufficient education and knowledge to discern the law and to articulate the bases for a decision. In addition, an educational requirement allows the judges to command the respect of litigants and society.

 

Finally, the judges' education should inculcate them with many of the values of the society and of the judicial system.[7] A perception by society of too great a deviation from accepted bases for decision making will generate pressure for greater control of the judiciary[8] and result in diminished judicial independence.

 

2.     Security of tenure

This is to the effect that judicial officers stay in official during the period of their good behavior and cannot be hounded out of office except for good cause. Removal from office should be based on stipulated procedures that afford protection to the judges. Judges who can easily be removed from office are susceptible to internal or external pressures in execution of their duties.

 

Judges have security of tenure that spans to seventy years while the Chief justice has a tenure in that capacity of five years. Article 167 (1) & (2). If the term of the Chief Justice expires before he/she attains he age of 70 years, he/she can elect to continue serving as a judge of the Supreme court. Article 167 (3).

 

In terms of their removal from office, judges can only be removed from office based on the clearly laid down constitutional grounds in Article 168 which include, inability to perform the functions of a judge due to mental or physical incapacity, breach of code of conduct prescribed for judges by an Act of parliament, bankruptcy, gross misconduct or misbehavior or incompetency.

 

2a. Removal of judge from office- Article 168

The process of removing judges from office is by way of a petition by any person to the judicial service commission or by a motion of the judicial service commission.

 

The petition must be writing and must set out the alleged facts constituting grounds for removal of the judge.

 

The judicial service commission upon consideration of the petition and if satisfied that the petition discloses grounds for removal, it shall send the petition to the president. However, if it is not satisfied, it shall dismiss the petition.

 

The president on receiving the petition, shall within 14 days of receipt of the petition suspend the judge and appoint a seven member tribunal consisting of;

 

1.     Chairperson  and three members who hold or have held the office of a judge or are qualified to hold the office of a superior judge and have not been members of the judicial service commission within three years preceding the appointment

2.     One advocate of 15 years o experience

3.     Two  persons with experience in public affairs

 

If the removal relates to the Chief justice, the president shall appoint a 7 member tribunal consisting of;

1.     Speaker of the national assembly who shall be the chairperson

2.     Three superior judges from common law jurisdictions;

3.     One advocate of 15 years standing experience

4.     Two persons with experience in public affairs

 

3.     Financial independence

Financial independence relates both to financial terms and benefits that accrue to judicial officers on the one hand and on the other, as to institutional financial independence required by the judiciary in order for it to function effectively.

 

As relates to emoluments, judges may be compromised for fear of reduction of their salaries or for promise of better salaries and benefits if they are not well paid and their benefits not very befitting and sustainable. This from the perspective of our constitution as seen previously has been adequately addressed.  

 

On the second aspect, if one arm of the government controls the funds needed by the judiciary for its operations, it means that the judiciary operates at the call of that arm of government, thus no functional independence of the judiciary. 

 

Functional independence as relates to finance, the constitution establishes a judiciary fund which is to be administered by the Chief registrar of the judiciary-an appointee of the judicial service commission.

The Chief registrar is supposed to prepare financial expenditure estimates for the judiciary and submit them to the national assembly for approval. Once approved, the expenditure shall be a direct charge to the consolidated fund which shall be paid directly into the judiciary fund.

It is worth noting that the national assembly may vary the proposal of the chief registrar thus the legislature has some financial control into the financial independence of the judiciary. On the other hand, parliament by dint of Article 173 (5) may through an Act of parliament, control the operations of the Judiciary fund. This can be argued to be some of the doors through which the legislature either exercises a check on the judiciary or may indeed interfere with the financial independence of the judiciary as an institution. 

 

4.     Immunity

Immunity of judges from civil liability during their tenure is necessary for judicial independence. In Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871), the Court noted, Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom [to act upon the judge's conviction][9] and destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility. 

 

The United States Supreme Court and several commentators on immunity from civil liability have opined that it is only necessary to a limited extent. First, civil, or even criminal, liability imposed on judges for reasons other than their judicial decision making would not interfere with judicial independence.

 

Second, civil liability even for their judicial decision making may not interfere with their independence. Potential civil liability only subjects a judge's decisions to peer review rather than to the judgment of political bodies.[10]

 

Third, in many cases, a judge knows that any ruling will displease at least one party. In other cases, she can foresee displeasing all participants. In either case, however, a judge without immunity can expect to be sued regardless of how she rules. For that reason, the threat of civil liability might not influence a judge's decision on which party prevails; it would affect only her decision making process.[11]

 

In these circumstances, broad protection against civil liability for the judiciary may be more important for the efficient administration of justice than for protecting judicial independence.[12]Immunity frees judges from the need to devote their time and resources to defending lawsuits or engaging in "defensive" judging.[13]

 

Article 160 (5) grants immunity to judges from any liability in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function. It is notable that, the acts or omission must be in good faith, thus if one can establish malice, then he/she can be able sustain a suit against a judge. Secondly, the immunity is only as relates to judges actions in performance of their duties, thus immunity is circumscribed to acts or omission that during the execution of judicial functions.

 

This immunity brings to question the element of professional negligence on the part of the judges. What recourse does a person who suffers from a decision rendered on the basis of a negligent judge? If she sustains a petition for the removal of the judge on grounds of incompetence, would she then be open for compensation from the judge or from the judiciary?

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[1] Council of Europe "The Council of Europe and the Independence of the

Judiciary," Thematic Report prepared by the Council of Europe at the request

of the OSCE Office for Democratic Institutions and Human Rights, September

1998.

[2] Landes, William M. and Richard A. Posner "The Independent Judiciary in

an Interest-Group Perspective" Journal of Law and Economics 18:875-901

(1975)

[3] N Udombana ‘ the African Commission on Human and Peoples’ Rights and the development of fair trial norms in Africa’ (2006) 6 African Human Rights law journal 312.

[4] Dias, RWM., (Ed) (1976) Jurisprudence London:  Butterworths 4th Edn p 128

[5] Hamilton, A., (1788) Federalist: Judiciary Department New York: McLeans No 78

[6] Dennis Lloyd, D., (Ed) (1973) Idea of Law London:  Penguin Books, pp 257-258

[7] See generally Charles Nesson, The Evidence or the Event? On Judicial Proof and The Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1361-68, 1391-92 (1985) (discussing the role of a judge and a jury in evaluating societal values).

[8] at 573-80 (summarizing the many-and mostly unsuccessful-

attempts by Congress over the past 200 years to intimidate the Supreme

Court because of its unpopular judicial decisions, including President Roosevelt's 1937

court-packing proposal).

[9] In terms of conviction, the court held thus, ‘lt is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.’

[10] In re Certain Complaints Under Investigation, 783 F.2d 1488, 1508 (11th Cir. 1986) (allowing judicial colleagues to investigate and decide disciplinary actions "makes it likely that the rightful independence of the complained-against judge, especially in the area of decision making, will be accorded maximum respect").

[11] The threat of monetary liability may cause judges to proceed more cautiously and to take more time in justifying their results.

[12] See, J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 DUKE L.J. 879 (identifying finality of court decisions by channelling requests for review through a hierarchy of higher courts as an important policy reason for judicial immunity); Michael Robert King, Note, Judicial Immunity and Judicial

Misconduct: A Proposal for Limited Liability, 20 ARIz. L. REv. 549 (1978) (identifying nine policies for judicial immunity and arguing that they do not justify absolute immunity); Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322 (1969) (arguing that the several policies supporting judicial immunity do not justify absolute immunity).

[13] The Supreme Court's lengthy discussion of judicial immunity in Bradley presents more of a rationale that judicial immunity promotes the efficient administration of the judicial system by protecting judges from "vexatious litigation." Bradley, 80 U.S. (13 Wall.) at 347-49, 354. The discussion seems to assume as self-evident that civil immunity is necessary to protect volitional decision making.