An investigation was Monday launched against three Supreme Court judges, which could trigger removal proceedings and plunge the Judiciary into a constitutional crisis.
The surprise move by the Judicial Service Commission (JSC) arose from a position letter written by the Supreme Court to the commission on two controversial matters; the retirement age for the judges and an election petition over the Bomet Senate seat.
This comes days after President Uhuru Kenyatta formed a tribunal to investigate another Supreme Court judge, Philip Tunoi, over bribery claims. Reports Monday indicated the JSC had formed a sub-committee to determine whether Justices Mohammed Ibrahim, Jackton Ojwang’ and Njoki Ndung’u should be removed from office over an alleged go-slow in September, last year.
Accusations that the three had gone on strike arose from a letter the Supreme Court wrote to the JSC indicating it was not properly constituted as required by the Constitution to listen to the judges’ retirement issue and the petition, which had been filed by Kanu secretary general Nick Salat. But claims of misconduct were also raised against the Supreme Court because some of the judges had commented on the age limit issue while making a ruling on the Salat election petition.
Earlier, the court’s letter to the JSC had been prompted by a directive by the commission that Tunoi and Rawal cease hearing cases because they had reached retirement age. Yet from the court’s point of view, the suspension of the two rendered the bench incomplete because the Constitution requires the judges to be seven.
Another factor which rendered the court unable to hear the two cases was that two of its members - Chief Justice Mutunga and judge Smokin Wanjala - were also members of the JSC to which the complaint had been addressed.
The dispute sparked exchanges between the JSC and the three Supreme Court judges, who are understood to have signed the letter on the court’s inability to sit.
The protest by the judges against the JSC directive drew a complaint from then Law Society of Kenya (LSK) chief executive officer Apollo Mboya. mHe accused the three judges of misconduct and pronouncing themselves on the retirement age of judges while the matter was still pending in the High Court.
The petition has thrown the seven-member Supreme Court into a deeper crisis given ongoing proceedings against two judges. Deputy Chief Justice Kalpana Rawal is fighting retirement and Tunoi faces a tribunal over Sh200 million bribery case.
With Justices Ndung’u, Ojwang’ and Ibrahim also subject to a probe, with the possibility of a protracted process, the Supreme Court is therefore only left with Mutunga, who retires in June, and Justice Wanjala. With two judges, the court does not have quorum to hear matters.
Monday, reports indicated JSC commissioner Kipng’etich arap Korir Bett will chair the sub-committee whose members are Emily Ominde, Winfred Guchu, Aggrey Muchelule and Mohamed Warsame. The sub-committee will give a hearing to the parties involved. Chief Justice Mutunga, who is also the president of the Supreme Court, will also reportedly appear to tell the committee whether his court was functioning properly during the period in question.
Judiciary’s Chief Registrar Ann Amadi did not respond to our inquiries about the development Monday.
“JSC agreed that it will conduct an oral hearing, have the judges give their side of the story and also Apollo Mboya. Mr Mboya was informed to expect a communication on the hearing date,” said a source familiar with the development.
Mboya had complained that the three had authored a letter indicating they were withdrawing judicial services, which he said amounted to misconduct and was against their oath of office. The complaint also indicated that the three judges had pronounced themselves on the issue of retirement age of judges when the matter was still pending in the High Court by stating judges ought to retire at 74 years.
“I have been complaining that the JSC has been by-passing this complaint yet it’s of utmost importance,” Mboya told The Standard Monday.
The genesis of the investigation can be traced to a dispute last year between the Supreme Court judges and the JSC that was then exclusively reported by The Standard on Sunday.
The trio then protested that JSC had given itself powers it did not have under the Constitution to suspend two of their colleagues from hearing any cases until their respective petitions challenging a decision to retire them were concluded. At the heart of the dispute was JSC’s action against Rawal and Tunoi.
The 70-year retirement question has been thrust to the limelight after Rawal, Njoki, Tunoi and Ojwang’ in a majority decision ruled that judges could not be forced to retire at 70, escalating a conflict with JSC.
They ruled that JSC “lacks the competence to determine when a judge may perform their judicial duty”. But the Chief Justice, who is also chairman of the JSC, dissented noting that there was no case surrounding the age question before that court.
The dispute sparked controversy because it has implications on the composition of the Supreme Court, the final arbiter and interpreter of the Constitution. It also has exclusive jurisdiction in determining a presidential election petition.
At the time, the judges denied being on a go-slow. “I would like to correct the erroneous recurring impression that I am or have ‘remained’ on strike. The so called ‘strike’ is unknown to me,” Justice Ibrahim then said in a statement to the media.
In the petition, Mboya wants them removed from office and made to “reimburse taxpayers a quantifiable remuneration and benefits drawn during this period in which they engaged in unconstitutional and illegal industrial action through a self-imposed moratorium on all judicial operations”.
Mboya, who petitioned the JSC, believed that the three judges’ action had led to matters being adjourned for lack of proper constitution of the Supreme Court.
