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.
Some scholars have produced long lists of criteria the judiciary must meet;
others focus on more narrow aspects of judicial institutions.
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
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 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
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:
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.
A perception by society of too great a deviation from accepted bases for
decision making will generate pressure for greater control of the judiciary
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]
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.
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.
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.Immunity
frees judges from the need to devote their time and resources to defending
lawsuits or engaging in "defensive" judging.
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?
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
Landes, William M. and Richard A. Posner "The
Independent Judiciary in
an Interest-Group
Perspective" Journal of Law and Economics 18:875-901
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).
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
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.’
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").
The
threat of monetary liability may cause judges to proceed more cautiously and to
take more time in justifying their results.
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).
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.
