Constitutional hurdles to block ouster of JSC

By LILIAN aLUANGA

 

Parliament’s adoption of a report that calls for the setting up of a tribunal to investigate the conduct of Judicial Service Commission (JSC) members could have far reaching implications.

The JSC was established under Article 171 of the Constitution. It is mandated to promote and facilitate the independence and accountability of the Judiciary as well as ensure efficient, effective and transparent administration of justice.

The Commission’s functions include to recommend to the president persons for appointment as judges, review and make recommendations on conditions of service of judges and judicial officers, and discipline errant ones.

 The JSC is also responsible for preparing and implementing programmes for training of judicial officers, as well as advise the national government on improving efficiency of the administration of justice.

JSC members targeted by parliament’s Justice and Legal Affairs Committee are Ahmednassir Abdullahi, Rev (Dr) Samuel Kobia, Prof Christine Mango, Justice Mohammed Warsame, Chief Magistrate Emily Ominde and advocate Florence Mwangangi.

The members represent judges, magistrates, advocates and the public.

Law Society of Kenya Secretary Apollo Mboya says the move by Parliament to initiate removal of JSC members could lead to ‘turbulence’ in the judicial arm of government with respect to functions its mandated to carry out. “There are certain decisions, like this, whose import Parliament needs to consider because of its ramifications,” he says. Mr Mboya, however, says should the president go ahead to set up a tribunal, its validity could be challenged in court on constitutional grounds.

Another top judicial officer says that while Parliament may have a constitutional mandate to determine removal of any commissioner, it should have proper grounds for doing so.

“Courts ought not to interfere with parliamentary business but it doesn’t mean that they cannot give orders that are binding on Parliament, on matters of interpreting the Constitution,” he says.