JSC 'throws out' petition to sack three Supreme Court judges

Fresh controversy has rocked the Judicial Service Commission (JSC) over the outcome of a petition which had called for the removal of three judges.

Former Law Society of Kenya (LSK) Chief Executive Officer Apollo Mboya had petitioned JSC to send home Supreme Court Judges Jackton Ojwang’, Mohammed Ibrahim and Njoki Ndung’u over alleged gross misconduct.

Mr Mboya alleged that the three judges had pronounced themselves on a matter that was still pending in court besides participating in an alleged strike.

Now, JSC is said to have thrown out this petition for lacking in merit and proposed that the judges be admonished, a move that legal experts have termed as “highly irregular”.

Highly placed sources within JSC told The Standard that the commission was divided on the petition, and as a result decided to find a middle-ground.

“When the matter was taken to a select committee of the commission for consideration, the committee could not agree. The committee then tabled the matter before the full commission. The commission was also divided into two camps. One camp insisted the matter had no merit while another said there was enough ground for removal of the judges.

“There was a complete deadlock. It was then that one commissioner said that we need to find a middle-ground and recommended the petition be thrown out but then the judges be admonished,” one of the commissioners told The Standard.

This narrative has been confirmed by the petitioner. Mboya said two commissioners he met on Friday evening told him that the commission had been unable to reach a decision and instead chose to go the consensus way. The consensus being to throw out the petition and at the same time recommend that the judges be reprimanded. The commission met until 10pm on Wednesday last week before reaching the said consensus.

Mboya has officially written to the commissioners through a letter dated May 5, 2016 which was received on May 6, 2016, asking for JSC’s final report on his petition.

But Judiciary Chief Registrar Anne Amadi defended the commission, saying the report was not fully completed for release.

Complaint letter

She however, said she aware that Mboya’s complaint letter was delivered to the commission on Friday.

“I was not in office on Friday but I was informed about Mboya’s letter. The report has not been completed,” she said.

The letter, a copy of which we obtained reads in part, “It is close to six months since the petition was lodged and I have never been accorded an opportunity to appear before the commission neither am I aware if the judicial officers who are subjects of the petition have been accorded the opportunity to appear before the JSC...this is to request as the petitioner, that I be supplied with the report containing the said decision to enable me determine my next course of action.”

The three judges had also received letters from JSC informing them of the existence of the petition and that they would be assigned dates to appear before the commission. They, however, weren’t invited either.

Lawyer Ng’ang’a Mbugua has described the decision by JSC as one that is “highly irregular” and that cannot stand when applied to the law.

“The petitioner did not ask JSC to admonish the judges. He asked the commission to send them packing. There is no prayer to admonish the judges and there is therefore no way the commission would address itself to a matter that is not before them. Secondly, you cannot throw out a petition and make another decision based on the same petition. If you throw it out, that’s final.

“This decision is also one that disobeyed rules of natural justice. You cannot condemn somebody unheard. If the accused persons and the petitioner were never given a chance to appear before the commission, then under the law, the decision of the commission on that matter is null and void,” he said.

JSC disbandment

Mboya further said that he would forward a petition to Parliament for the disbandment of the entire JSC on grounds on incompetence. “I will definitely be petitioning Parliament to send home the entire JSC because it is clearly incompetent,” he said

Part of the controversy was the question of whether JSC has powers to reprimand judges. While one camp insisted the commission does not have such powers, the other camp was of a different opinion.