President Uhuru Kenyatta suspends six JSC members

President Uhuru Kenyatta suspends six JSC members.

By Stephen Makabila and Faith Ronoh

Kenya: President Uhuru has suspended six members of the Judicial Service Commission (JSC) and appointed a tribunal to investigate their conduct.

The President’s order in a special issue of the Kenya Gazette published Friday followed a majority vote in Parliament on November 7 requiring him to set up a tribunal.

The six members of the JSC to be investigated are Ahmednasir Abdullahi, Dr Samuel Kobia, Prof Christine Mango, Justice Mohamed Warsame, Ms Emily Ominde and Ms Florence Mwangangi.

The suspension of the six commissioners leaves JSC with five commissioners whilst the law provides that the quorum of the JSC is six.

Retired Justice Aaron Gitonga Ringera will chair the investigation assisted by lawyer Jennifer Shamallah, Ambrose Otieno Weda and Mutua Kilaka.

To newsrooms

Later in a statement posted to newsrooms, the President sought to explain why he had made the decision: “Article 251(4) (b) mandates the President to form a tribunal. The provision is couched in mandatory terms and therefore there is no room for discretion other than to form a tribunal.

“I, therefore, have no choice but to follow the dictates of the law. Failure to do so will set a bad precedent for the country,” said Uhuru (see full statement).

The JSC, chaired by Chied Justice Willy Mutunga, is an independent Commission established by Article 171, composed of part-time Commissioners whose main mandate is to recommend for recruitment of judges, recruitment and discipline of staff.

Pending the report of the tribunal, the six members of the JSC stand suspended from exercising the functions of their office with immediate effect.

On October 16, a petition for removal of the six from the JSC was presented to the National Assembly in accordance with the provision of Article 251(2) of the Constitution.

The National Assembly considered the petition in accordance with Article 251(3) of the constitution and by a resolution passed on November 7, was satisfied that the petition disclosed grounds under Article 251(1) of the Constitution for removal of the six members of the JSC from holding office.

The petition was presented to the President on November 14 in accordance with Article 251(3).

The mandate of the tribunal formed by the President includes to investigate the alleged conduct of the six members and determine whether it discloses grounds for removal of any or all of them from office under Article 251 (1) of the constitution.

“The tribunal has also the mandate to report on the facts and make its recommendations thereon to me expeditiously,” noted Uhuru in the Gazette notice number 15094.

The President further noted the tribunal shall have all the powers necessary for proper execution of its mandate, including the power to determine the times and venue of its meetings and to regulate its own procedure.

Other than forming a tribunal, the President had an option of taking a middle path as had been proposed by the Commission for the Implementation of the Constitution (CIC), which recommended that he convenes a meeting to reconcile the two arms of government and find a workable solution.

 But yesterday, a CIC commissioner lawyer Kamotho Waiganjo pointed out “Once Parliament passes a resolution like that, the President is obliged to appoint a tribunal. He has no choice. The only discretion he might have is whether or not to suspend.”

The tribunal formation comes barely three weeks after MPs voted to back a report by the Justice and Legal Affairs Committee of Parliament that targeted the six members of the JSC.

In their report to parliament, the committee stated: “Having considered the provisions of Articles 73, 75, 76, 125, 161, 171, 172, 173, 245 and 251 of the Constitution; and, having considered the provisions of the Judicial Service Act, the Public Finance Management Act, the National Police Service Act and the Advocates Act; and Standing Order 230, the Committee reports to House that the Petition discloses grounds for removal of the six Judicial service commissioners.”

A Nairobi lawyer, Mr Riungu Nicholas Mugambi, had also filed a petition for the removal of the commissioners on grounds of serious violation of the law, incompetence, gross misconduct in the performance of functions and serious violation of the constitution.

JSC had filed a court order seeking to stop the committee from tabling the report in Parliament but the National Assembly Speaker Justin Muturi said there was no way courts could stop what the House had already set in motion.The commissioners’ failure to honour committee’s summons, sending instead lawyer Paul Muite to speak for them, further angered the MPs.

The suspensions were the culmination of a bitter struggle within the Judiciary which was sparked off by the controversial suspension of the Chief Registrar of the Judiciary Mrs Gladys Shollei in August.

Earlier that month, a section of the JSC met in Mombasa and accused the Chief Registrar of high-handedness and financial mismanagement.

In spite of a vigorous defence, the JSC met on August 20 and resolved to send Mrs Shollei on compulsory leave pending investigations into claims of misappropriation of funds and other malpractices. The former Chief Registrar denied any wrong doing and termed her suspension “irregular and unfortunate.”

She continued to insist that the Judiciary had not lost any money and that the allegations were baseless and amounted to malice and character assassination.

Mrs Shollei also appeared before the parliamentary Public Accounts Committee (PAC) that was chaired by Ainabkoi MP Samuel Chepkonga where she defended herself stating that the dispute was also about her stance on the payment of huge sitting allowances to members of the JSC members where in one year more than Sh125 million had been paid

The JSC failed to honor summons by PAC to appear before it to shed light on financial management at the judiciary and the allegations that had been made in public against the former registrar.

In September, the Law Society of Kenya (LSK) joined in and threatened to petition President Kenyatta to initiate the process to disband the commission if it “mishandled” Shollei.

Showdown

LSK chairman Eric Mutua accused JSC of failing to conduct its affairs beyond reproach as provided in the Constitution.

But a showdown loomed when JSC announced the sacking of Mrs Shollei on October 18, citing misappropriation of funds, insubordination and incompetence.

Mrs Shollei has since moved to court to challenge her sacking stating that JSC had violated her rights to presumption of innocence, to be informed of the charges in sufficient detail and to have adequate time to prepare her defense.

In her case, Mrs Shollei mentioned commissioners Ahmednasir Abdullahi, Emily Ominde, Florence Mwangangi Mohammed Warsame and Christine Mango as those who unfairly pushed for her removal.

The setting up of a tribunal to investigate the six JSC members comes in the backdrop of a pending petition by a lobby group and a private citizen demanding the removal of the Chief Justice as the head of the Judiciary.