The Judicial Service Commission (JSC) has been criticised over its handling of a petition that sought the removal of three Supreme Court judges over claims of gross misconduct.
According to documents and information obtained by The Standard on Sunday from credible sources within the JSC, former Law Society of Kenya (LSK) Chief Executive Officer Apollo Mboya has officially registered his protest over what he has described as an "unconstitutional ruling".
Mboya wants three Supreme Court Judges — Mohammed Ibrahim, Njoki Ndung'u and Jackton Ojwang — sent home for allegedly taking part in a strike.
Mboya's protest is based on two grounds. First, that the commission found the three judges guilty of gross misconduct and chose to have them admonished instead of recommending the formation of a tribunal to probe them. Secondly, that the JSC made a determination of his petition without according him an opportunity to appear before it to prosecute his case.
Mboya said he would be filing a petition in the National Assembly to have JSC disbanded on grounds of incompetence.
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On Friday, he wrote to the commission demanding "disciplinary measures to be taken against state officers who are in breach of the rules of ethics; and, as regards the Judiciary ... provide for specific measures of discipline."
Mboya went on to say that: "It is my considered view that upon determining the misconduct of the judges, the JSC could have very well misdirected and misconducted itself in admonishing the judges, instead of recommending to his Excellency the President the appointment of a tribunal to investigate their conduct."
JSC had written to Mboya a letter dated May 9, 2016, informing him about the outcome of his petition. In its letter, JSC said the commission had reviewed the petition and concluded that the conduct of the judges was indeed unbecoming of them as judges and amounts to misconduct. However, it noted that the matter does not meet the threshold necessary for removal.
Mboya told The Standard on Sunday that this decision was arrived at after the commission failed to agree. "As a consequence, the commissioners agreed to find a middle ground and arrived at what was described as a 'consensus ruling'," he said.
Justice Ndung'u, through her lawyers LJA Advocates, has also formally complained to the commission over what she called a strange recommendation to have them admonished.
Ndung'u's lawyers have protested that JSC reached a resolution to admonish her for an undisclosed offence for which she was never given an opportunity to comment on.
"We have consistently made it clear that our client remains unaware of the specifics of the charges against her relating to the conduct of her constitutional duties as a judge of the Supreme Court...the petitioner has in particular never provided any details of any suit that our client declined to handle or determine in furtherance of the purported strike and in the circumstances, the allegations stood as vague and unsubstantiated thus impeding on her ability to respond to the same substantively," reads part of the letter.
Ndung'u now wants the JSC to provide evidence which led to the JSC ruling, the specific misconduct she has been found guilty of and the basis on which JSC proceeded to determine this matter given that no hearing was conducted contrary to earlier assurances by the commission. Ndung'u also wants JSC to explain the basis upon which the petitioner and herself were not afforded a hearing before the decision in the resolution was taken.
Mboya, in a letter dated May 5, protested to the JSC saying it was puzzling how the commission would reach a resolution on his petition without giving him a chance to appear before it. "It is close to six months since the petition was lodged and I have never been accorded an opportunity to appear before the JSC, neither am I aware if the judicial officers who are subject of the petition have been accorded the opportunity to appear before the JSC," reads part of Mboya's protest letter.
Contacted yesterday, Mboya said: "Even after my letter, I was never called to appear before JSC on this matter despite being the petitioner. The only thing they sent was the ruling. Secondly, we have to be honest, it is unprocedural to take administrative action without according the person who is to be affected by that action a fair hearing."