Kenya is staring at a judicial paralysis as six out of the seven judges of the highest court in the land, fight for survival.
The Supreme Court is facing a quorum crisis over petitions challenging the conduct of five of its members. Four Supreme Court judges are to appear before committees established by the commission to orally defend themselves against allegations levelled against them after the election petition challenging the suitability of Wajir Governor, which was concluded recently.
The affected judges are Mohamed Ibrahim, JB Ojwang, Smokin Wanjala and Njoki Ndungu. Already, President Uhuru Kenyatta has formed a tribunal to investigate the conduct of Justice Ojwang, who is facing a separate petition over allegations of conflict of interest arising from a case relating to Migori Governor Okoth Obado.
On the other hand, Deputy Chief Justice Philomena Mwilu who is challenging her prosecution over corruption allegations is waiting to know her fate on May 30.
The judges are not alone. Their boss Chief Justice David Maraga (pictured), who is the JSC chair is also battling to clear his name in a petition seeking his removal for alleged gross violations of the Constitution.
In the petition against Maraga by Mr Yussuf Ibrahim Dimbil, the CJ who also chairs JSC is alleged to have lifted a quote from a judgment that was yet to be delivered.
This leaves only Justice Isaac Lenaola as the only member of the court without a petition.
The petitions that have been pending before the Judicial Service Commission (JSC) are likely to cause a stalemate if the commission decides to forward one or two of the names to President Uhuru Kenyatta to form a tribunal to investigate the conduct.
Article 163(2) states the Supreme Court shall be properly constituted for purposes of its proceedings if it is composed of five judges.
Stay informed. Subscribe to our newsletter
The commission’s secretary Anne Amadi has notified petitioners in the matters to appear before the JSC for oral hearing.
Mr Garad Saney Mohamed, who took over as lead petitioner in one of the matters against the four judges after the initial petitioner on March 27 this year, Mr Mohamed Sheikh withdrew the allegations against the judicial officers, is to also appear before the commission at a date to be given by JSC.
“The notice to withdraw and your referenced letter were tabled before the JSC on March 2, 2019 and upon deliberation, the commission resolved that it would proceed to consider the petition on the basis of your intent and that of the resident of Wajir County to prosecute the same, the withdrawal by Mr Mohamed Sheikh notwithstanding,” Ms Amadi stated in her letter dated May 7.
The JSC secretary stated that the petition had been admitted for oral hearing and the date/time shall be communicated later, adding that copies of responses filed by the four judges at the commission were forwarded to him for information and record.
In the petition filed by Mr Jared Ongeri against the four judges in relation to the same election petition, Amadi said the commission had resolved to invite the petitioner and each judge for oral hearing.
The petitioners were given 14 days to file witness statements, a list of documents and witnesses they are to rely on in their cases against the judges.
The affected judges are to appear before the committees formed by the commission and if satisfied that a petition disclose a ground for the removal of an accused judge from office, it will forward the recommendations to the president to form a tribunal to carry out its investigations.
Article 168 (4) of the Constitution states that JSC shall consider the petition and, if it is satisfied that the petition discloses a ground for removal, the commission shall send the petition to the president.
Yesterday, Homa bay Town MP Peter Kaluma said the Supreme Court remains strong despite the petitions.
“It is normal for people to complain against judicial officers. This should in fact be encouraged in growing democracies like Kenya as it strengthens the court system. The only concern is that the complaints take too long to be determined by JSC, even the complaints are baseless,” he said.
He said there is need for JSC to device ways of dismissing baseless petitions summarily while ensuring complaints against judicial officers, especially judges, are decided upon expeditiously.