JSC dismisses allegations filed against Supreme Court judges

The Judicial Service Commission (JSC) has dismissed allegations filed against Supreme Court judges over their conduct during the August 8, 2017 presidential petition.

A JSC session chaired by Commissioner Tom Ojienda went through all allegations and concluded that they lacked merit.

Their decision was based on the Supreme Court Act 20(4) that says the commission may, in circumstances it considers exceptional, on an application by any party or on its own motion, review any of its decisions.

"The commission considered the allegations based on the 2017 presidential polls a pure threat that was intended to intimidate the judges. The allegations were thrown out because they were malicious and were not supported with any facts," a source told Sunday Standard.

JSC's decision now gives Chief Justice David Maraga, his deputy Philomena Mwilu and the other judges a clean bill of health.

But not all judicial officers are off the hook as the commission made a decision to form a special committee to investigate other allegations touching on some appellate judges.

The commission recommended that a special committee be formed to hear allegations filed by lawyer Apollo Mboya against the President of Appeal Court, Kihara Kariuki, and Justices Erastus Githinji, Martha Koome and Fatuma Sichale.

In the allegation, Mboya is accusing Justice Kariuki of forming a bench to sit on October 25, a public holiday, and that Maraga did not authorize the sitting.

The appellate judges were required to hear and determine an appeal against Justice George Odunga's decision that had declared returning officers unlawfully gazetted, hours to the repeat presidential elections.

A special committee is to be also formed to investigate Supreme Court judge Jackton Boma Ojwang over allegations that Migori Governor Okoth Obado tarmacked a private road leading to the judge's village, while he sat on a Supreme Court bench hearing an election petition against Obado.

The petition filed by a group of nine people against the judge claimed tarmacking of the road amounted to him receiving a favour from the governor.

Sources within the commission say the retreat that cleared the Supreme Court judges was agreed on after it emerged that the commission was staring at an administrative paralysis following a flurry of allegations leveled against the leadership of JSC – the administrative engine of the third arm of government.

The top two bosses of Kenya's Judiciary and another three judges of the Supreme Court had complaints filed against their conduct, the primary call being that they should be disciplined or removed from office.

They were CJ Maraga, his deputy Mwilu, Supreme Court Judges Njoki Ndung'u, Jackton Ojwang', Isaac Lenaola and Mohammed Ibrahim, who were all facing allegations of misconduct and violations of the law levelled against them separately by three people, including a sitting MP.

Maraga, who is the JSC chairman, was facing complaints from Nyeri Town MP Ngunjiri Wambugu. In his complaint, the MP accused the CJ of gross misconduct, exposing the Judiciary to "capture" by external forces that are opposed to President Uhuru Kenyatta and his deputy William Ruto. Ngunjiri also complained about the Judiciary's decision to skip the controversial State-opening of the 12th Parliament.

When the matter came before JSC's retreat in Mombasa, Maraga and Mwilu were forced to leave the room and the remaining team appointed Ojienda to chair the heated session.

Mwilu had been accused by Derrick Ngumu that she had links and inappropriate contact with the Opposition National Super Alliance (NASA) ahead of the Supreme Court ruling.

The threshold for conflict of interest, according to the law, refers to situations where a person's "objective ability or independence of judgment in performing official duties is impaired or may reasonably appear to be impaired".

Justice Lenaola's case too was related to the NASA petition.

The premium, according to the rules of the JSC and the Fair Administrative Action Act, is on a fair process.

Apart from Maraga and Mwilu, other JSC officials are Court of Appeal judge Mohamed Warsame, who is the third in the pecking order at the JSC, followed by High Court's Aggrey Muchelule. Senior Counsel Tom Ojienda, Attorney General Githu Muigai, Chief Magistrate Emily Ominde, Public Service Commission (PSC) Chair Margaret Kobia, two commissioners Kipng'etich arap Korir Bett and Mercy Mwara Deche.