The Supreme Court is staring at a crisis, following the DPP's petition against Deputy Chief Justice Philomena Mwilu at the Judicial Service Commission (JSC).
On Friday, the Director of Public Prosecutions (DPP) made good his pledge to petition for Mwilu's removal after the High Court dismissed his attempt to charge her in court over alleged criminal conduct.
The petition against Mwilu adds to the others filed against her boss, Chief Justice David Maraga, and Supreme Court judges Jackton Ojwang', Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung'u. Besides the petitions, some of the judges are set to retire from the bench in the next few years.
Justice Ojwang' has since been suspended and a tribunal chaired by Justice Alnashir Visram is on the ground probing his suitability.
Maraga, who chairs the JSC and battling to clear his name in a petition seeking his removal for alleged gross violations of the Constitution, is to retire on January 12, 2021 when he attains the age of 70.
Other members set to retire before the 2022 elections are Ibrahim and Ojwang.
Former East Africa Law Society President James Mwamu said there is a need for the commission to manage petitions against the judges in a way that they do not create a crisis in the Judiciary.
“There is no crisis as at now but if JSC decides to forward some names to the President and the CJ plus two more other members of the court retire, we will have a big problem. There will be a problem if, for example, Parliament or the Executive seeks for advisory opinion and there is no quorum,” said Mwamu.
He said it is JSC’s responsibility to deal with the petitions as fast as possible, instead of keeping them pending for two or more years.
Mwamu said Maraga should give the JSC a chance to start the process of replacing him early enough in a bid to avert any crisis.
Former CJ Willy Mutunga retired at 69, a year before the retirement age.
“I hope the CJ will borrow a leaf from Mutunga to give a chance to JSC to appoint his successor instead of waiting for the last minute,” Mwamu said.
Law Society of Kenya (LSK) former Chairman Eric Mutua said the JSC should put in place mechanisms to replace those who retire on time.
The JSC, which until recently had no quorum, is now fully constituted and it is the institution that has powers to forward the name of the person to take over from Maraga.
The President will then forward the name to Parliament for vetting and subsequent appointment should it to be approved.
Article 168 (4) of the Constitution also gives the JSC powers to consider petitions filed against judges and, it if is satisfied that the petition discloses a ground for removal, the commission shall send the petition to the President.
Already, the President has formed a tribunal to investigate Justice Ojwang’s conduct and the commission is yet to make its decision on petitions touching on the conduct of Maraga and four other judges of the court.
Ojwang is facing allegations of conflict of interest with regard to a case relating to Migori Governor Okoth Obado.
The petitions against Maraga, Ibrahim, Wanjala and Njoki emanate from the manner in which they handled the Wajir election petition that upheld Governor Mohamed Abdi’s victory.
The petitioner, Yussuf Ibrahim Dimbil, claims the CJ lifted a quote from a judgment that was yet to be delivered.
If the JSC decides to forward to the President two more names of other members to be investigated, cases pending before the Supreme Court will be affected due to lack of quorum.
Article 163(2) of the Constitution states the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.
The court is comprised of seven judges, and only Justice Isaac Lenaola's conduct is not challenged.
So far, the commission has received responses from the judges and in May, the petitioners were informed that they will be given dates to appear before the JSC for oral hearing.
In one of the petitions against the four judges, Garad Saney Mohamed took over as the lead petitioner after the initial petitioner Mohamed Sheikh withdrew the allegations against the judicial officers on March 27. Garad is to appear before the JSC on a date yet to be given.
"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,” Amadi stated in her letter dated May 7.
Amadi said the petition had been admitted to 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 the petitioner for information and record.
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