Patricia Mbote changes stand on judiciary ombudsman
By Patrick Vidija | April 13th 2021
Prof Patricia Kameri Mbote today found herself in unfamiliar territory for supporting the creation of the office of the Judiciary Ombudsperson.
Prof Mbote appeared before the Judicial Service Commission (JSC), where she said the office of the judiciary ombudsperson would play a key role in holding the judiciary to account.
Prof Mbote said many Kenyans had no idea what happens in the judiciary unless they access the State of Judiciary report.
She was responding to questions from Justice David Majanja.
Justice Majanja sought to understand whether the judiciary had failed in its mandate to an extent that only the ombudsperson could save it.
"The issue of judiciary ombudsman should not be looked at in silos. It should be looked at with what will be achieved," Mbote said.
She went on, "What we all need is support from the public because as a judiciary we must be answerable to the public. Anything that will make the judiciary answerable is a good thing."
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Mbote is among a group of scholars who are advising Parliament on the contents of the BBI.
As we are looking on how the BBI document affects certain constitutional provisions, we must assure the public that having a judiciary ombudsperson will still protect the independence of the judiciary," she said.
She, however, rescinded her position and said she would need to do further consultations on how the office would affect the judiciary.
The Judicial Service Commission has always opposed the creation of the Office of the Judiciary Ombudsman.
Article 172 of the proposed amendment Bill establishes the Office of the Judiciary Ombudsman to be nominated and appointed by the president with the approval of the Senate.
The Judiciary Ombudsman will receive and conduct inquiries into complaints against judges, registrars, magistrates and other judicial officers. He will also sensitise and promote engagement with the public as well as improve transparency and accountability in the Judiciary, says the Bill.
The proposals state further that the Judiciary Ombudsman shall prepare regular reports to the JSC and an annual report to Parliament on any complaint against judges and judicial officers.
But retired Chief Justice David Maraga then heading the JSC said the creation of such an office would conflict with JSC.
He said the ombudsman’s functions will usurp the powers of the JSC and that it was the commission that should be allowed to appoint the office holder with limited powers to only conduct investigations and report to JSC, which will then take appropriate actions.
“The Constitution vests in the JSC the responsibility of ensuring the independence and accountability of the Judiciary. The result of the BBI proposal is a direct conflict and duplication of roles between the Ombudsman and the commission,” said Maraga.
He added that the risk of parallel complaints being instituted with the JSC as well as the Ombudsman and the possibility of different decisions being arrived at is real and may result in a constitutional quagmire.
According to the commission, it is unnecessary to create the position since there already exist other alternative channels such as the Commission on Administration of Justice through which the public can voice complaints against judicial officers.
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