Supreme Court nominee Justice Sophia Rosetta Bernasko Essah has affirmed that the apex court can depart from its previous decisions where necessary to prevent injustice or correct errors in the law.
Appearing before Parliament’s Appointments Committee, Justice Bernasko Essah said judicial precedent was essential for ensuring consistency, certainty and predictability in the legal system. However, she noted that the Supreme Court should not be required to maintain a precedent that had resulted in injustice, contained an error of principle or conflicted with the Constitution.
She cited Article 129(3) of the 1992 Constitution as providing the basis for the court to depart from its earlier decisions where necessary.
“Yes, to the extent necessary, the Supreme Court is required under Article 129(3) to depart from its decisions if need be,” she said.
Justice Bernasko Essah explained that such a departure could be justified where an earlier ruling had created or was likely to create injustice, was constitutionally inconsistent, or had become impractical to apply.
She, however, stressed that the power should be exercised cautiously and only for compelling reasons. Where the court departs from precedent, she said, it must clearly explain its reasons and establish the new legal position.
Her position seeks to balance respect for judicial precedent with the need to ensure that the law remains consistent with constitutional principles and justice.
