CJ Koome to set bench to hear cases filed by Supreme Court judges

Chief Justice Martha Koome during the BBI ruling at the Supreme Court in Nairobi on March 31, 2022. [David Njaaga, Standard] The High Court has sent the remaining four files of the Supreme Court Judges to the Chief Justice Martha Koome to empanel a bench. Justice Lawrence Mugambi ruled on Friday that although Justice Koome was a party in the cases challenging the Judicial Service Commission (JSC) decision requiring all apex court judges to respond to petitions filed to remove them from office, she has to empanel benches. The judge issued the orders in favour of Koome and Justices Smokin Wanjala, Njoki Ndung'u, and William Ouko. The Judge said that the cases and issues raised exceeded their interests, adding that they raised novel issues that required more than one Judge to hear and determine. He said that the CJ could not influence a bench's decision as all judges owed their allegiance to the Constitution, not her. "The constitution is couched in mandatory terms that only the Chief Justice can empanel a bench. The consolidated petitions are transmitted to the Chief Justice for empanelment of an uneven bench of judges," he ruled. In the separate cases, the seven senior judges argue that JSC cannot entertain petitions that amount to a review of their judgments or rulings. In her case, the CJ argues that the petitions undermine the judiciary's independence. According to her, judicial independence has two main elements: decisional independence and institutional independence. She is of the view that judges enjoy immunity for exercising their decisional independence. "This has been encapsulated in Article 16 of the Constitution, which insulates members of the judiciary from any action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function," argues CJ lawyer George Oraro. On judicial independence, the DCJ argues that the petitions filed for removal are hinged on decisions made by the court, which is an official judicial role. Justices Ibrahim, Wanjala, Njoki, Lenaola, and Ouko hold a similar view that it is not open for the commission to interfere with the independence of the judiciary. The other issue before the court is whether the entire Supreme Court can be removed from office. DCJ argues that the Constitution does not contemplate a blanket petition. According to her, the law of the land requires each judge to carry their burden. Instead, he said, it is illegal to demand that a judge should be removed from office based on a unanimous decision with his or her colleagues. The DCJ says that the commission erred by requiring her to respond to the petitions filed by lawyer Nelson Havi, knowing too well that it was in the public domain that he and Ahmednasir Abdullahi had repeatedly attacked the apex court on social media without providing proof of their allegations.Justice Ibrahim sees the petitions as personal grudges, targeted especially at the CJ.He argues that this can be seen in Havi's writing about the CJ and the Supreme Court judges. Further, Justice Lenaola argues that each judge is appointed individually and that any petition ought to be made against each judge individually rather than as a collective issue. "The removal of a judge from office can only be justified where shortcomings complained of are of such a serious nature to destroy the confidence in the judge's ability to properly perform his duty," argues Lenaola. According to him, gross misconduct and misbehaviour an expressions of extreme negative conduct that would warrant the removal of a judge's office. The other issue is whether parties ought to rush to the commission in a challenge to a court order. Justice William Ouko says that the only options the constitution offers are to move to a higher court or seek a review. According to the judge, the commission is not empowered to reconsider, review, set aside proceedings, give directions on how a case can proceed, or even issue judgments or rulings. Justice Njoki, on the other hand, argues that it is illegal for the commission to consider petitions when it is known that litigants are seeking multiple remedies for the same issue. She says that the issues of Dari and Ahmednasir are actively before the High Court, making it subjudice for the commission to seek answers from the judges. "This is a charade meant to seek remedies on similar issues in two separate forums, resulting in a conflict of jurisdiction and blatant forum shopping for the first to the sixth interest parties in an attempt to undermine judicial authority from within," said Njoki.

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