A Deputy Chief Justice Philomena Mwilu will serve for the same period as the Chief Justice or opt to retire before the tenure in a raft of changes proposed in the Building Bridges Initiative (BBI).
If the proposals will be adopted, they will alter how the Judiciary and Judicial Service Commission (JSC) function. BBI wants Chapter 10 of the Constitution, on the Judiciary, be amended to have the term of the DCJ be aligned with the 10 years of the Chief Justice.
The 2010 Constitution is silent on the tenure of the DCJ, thus the office holder can only leave the office after attaining 70 years, be removed because of gross misconduct or opt for early retirement.
If the proposed changes are adopted into law, then the DCJ will also have an option to retire when he or she attains 65 years.
In a backdrop of a fixed seven-judge apex court, there is a possibility of the Supreme Court bench increasing as the DCJ, just as the CJ has an option to remain after the 10 years tenure as a Supreme Court judge if he or she has not attained the age of 70.
“Clause 35 of the Bill proposes to amend Article 167 (Tenure of office of the Chief Justice and other judges) to provide for the tenure of office of the Deputy Chief Justice and harmonise it with the tenure of office of the Chief Justice,” the 204-paged BBI proposal reads in part.
The document also proposes enhancing the qualifications of the judges of the Supreme Court and those in the Court of Appeal.
According to the document, a Supreme Court judge ought to possess at least 20 years’ experience while anyone who wants to sit in the second-highest court in the land should have been in the law sector for at least 15 years.
A High Court judge, it continues, should have practiced law for at least 10 years.
The current qualification of a CJ, DCJ and Supreme Court judges is 15 years’ experience as either a distinguished academic, judicial officer, legal practitioner or in any other relevant legal field.
At the same time, Court of Appeal judges ought to have 10 years’ experience and which is similar t the qualification of a High Court judge.
It is also suggested that the term of the president of Court of Appeal and that of High Court principal judge should be five years.
Meanwhile, BBI proposes that election petitions for Members of Parliament, Governors and Senators should end at the Appeals Court.
Under the 2010 Constitution, the Supreme Court remains as the last court of resort. The open election appeal process makes it impossible for election courts to conclude petitions within the six months provided.
BBI proposes amending Article 164, which is about the Appeals Court, to add that it should be the final court for all other election petitions other than a presidential election.
“The proposed amendments provide for the finality of the decisions of Court of Appeal in petitions concerning an election and limits the tenure of the president of the Court of Appeal and High Court to five years. The amendments further provide for the tenure of the Deputy Chief Justice and aligns it with that of the Chief Justice,” the document handed to President Uhuru Kenyatta and former Prime Minister Raila Odinga yesterday continues.
The document also wants to remove the Judiciary’s Ombudsman office from the hands of the Chief Justice and grant it full autonomy.
Under the current arrangement, the officeholder is appointed by the Chief Justice. However, in the BBI proposal, the Judiciary’s Ombudsman shall be held by a person nominated by the President and with the approval of the National Assembly.
He or she will serve for a single term of five years and ought to have 20 years’ experience in the legal profession.
That office shall be independent from the judiciary’s funding and the holder will be required to submit a report to the President and Parliament at the end of each financial year.
The Judiciary Ombudsman will sit in the JSC whose members will be now 13.
The Law Society of Kenya (LSK) representatives in the JSC will automatically cease practicing in court upon appointment. This, the BBI says, will minimise instances of conflict of interest. It had been claimed that the power wielded by the two can be used to intimidate judges and magistrates.
JSC will now have powers to discipline judges and magistrates for minor misconducts. Under the 2010 Constitution, the only remedy was removal from office.