Disbanding JSC a bold step in the right direction

By ANDREW MWENDA

The Constitution has indeed ushered in a new sense of accountability.

The move by President Uhuru to set up a tribunal to probe six Judicial Service Commission commissioners and by extension suspend them from office is in itself evidence of our nascent constitutional dispensation taking effect.

Our national values and principles, which are captured under Article 10, include good governance, integrity, transparency and accountability. Therefore, public services and public monies are expended for the benefit of all and not a few. Further, Chapter 6 of our constitution imposes on Kenyans values on leadership and integrity “authority assigned to a state officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the Constitution”.

The Constitution under Article 1 provides that all sovereign power belongs to the citizenry and shall be exercised only in accordance with the Constitution.

Therefore, the suspension of Ahmednassir Abdullahi, Samuel Kobia, Christine Mango, Mohammed Warsame, Emily Ominde and Florence Mwangangi is within the law. It is provided for under article 251 of the Constitution.

Separate entities

It is also important to note that the JSC and the Judiciary are separate entities and the suspension of the six commissioners will not affect the operations of the Judiciary. The Judiciary as per Article 161 of the Constitution consists of judges of the superior courts, magistrates, other judicial officers and staff while the JSC is an independent Commission established under Article 171.

The sacking of former registrar of the Judiciary Mrs Gladys Shollei without giving her enough time to prove her innocence was against the law and culminated in the suspension of the six commissioners. When Shollei was defending herself against allegations leveled against her by the JSC, she stated  some of the commissioners were conflicted. She mentioned commissioners Ahmednassir Abdullahi, Emily Ominde, Florence Mwangangi, Mohammed Warsame and Christine Mango as those who unfairly pushed for her removal for matters that needed to be dealt with by a tribunal in accordance with Chapter 6 on leadership and integrity.

The e-mail correspondence published in the media revealed that there was a “war council” against Mrs Shollei yet no one – not even the CJ – could explain the matter. It is the hope of Kenyans that the matter of these emails can be explained during the hearings at the tribunal.

Essentially, the petition by Parliament to suspend JSC commissioners was based on two grounds: financial interference by the commissioners and interference with ongoing police investigations on Sh80 million fraud at Judiciary.

The National Assembly is mandated to consider petitions from the general public concerning the proposed removal from office of Commissioners or holders of independent offices. This is clearly provided for under Article 251 of the Constitution.

The National Assembly through its Justice and Legal Affairs Committee considered the petition, invited testimony from petitioner, the JSC and the public to come up with a report.

House mandate

By entertaining the petition, the National Assembly was fulfilling its mandate. Whichever way, you will agree that by failing to respond to a petition by the House through the Justice and Legal Affairs Committee to shed light on impropriety and misuse of funds, the entire JSC including its leader CJ Mutunga failed. But what caused all the misunderstandings between the Judiciary and the JSC in the first place?

The Chief Registrar of the Judiciary is the chief administrator and accounting officer of the Judiciary. The roles and obligations of the accounting officer are further elucidated in the Public Financial Management Act 2011.

In playing all the roles, the accounting officer is responsible only to the National Assembly, Treasury and the Auditor General. During the hearing of the petition against the JSC members, it emerged that the sub-committee on Finance had arrogated to itself the role of approving expenditure contrary to the provisions the Constitution and the Public Financial Management Act.

This clearly indicates that JSC interfered with the operations of the Judiciary and their key interest was to finally control the purse strings of the Judiciary. It is hoped the tribunal bring this sad unfortunate matter to a close soon to enable the institution of the Judiciary continue the reform agenda. Mutunga should find the wisdom and value of humility to respect other leaders and desist from using derogatory words.

 

—The writer is a governance analyst