Sweet victory for Mwilu as court revokes petitions for her removal
By Paul Ogemba
| November 13th 2021
Deputy Chief Justice Philomena Mwilu can rest easy after the High Court quashed proceedings that sought to remove her from office over allegations of misconduct.
The decision by judges Said Chitembwe, Roseline Aburili and Weldon Korir was a sweet victory for Justice Mwilu, who has been fighting with the Director of Public Prosecutions and the Director of Criminal Investigations since 2018. It also lifted the uncertainty that hounded her office.
The three-judge bench declared that the Judicial Service Commission illegally admitted four petitions seeking to remove the DCJ from office, and stopped any further proceedings challenging her integrity on account of evidence presented by the DPP and the DCI.
“It was not proper for JSC to admit the petitions seeking to remove the DCJ from office. The commission should ensure that no judge is subjected to unfair process and declare that their decision to accept and initiate the proceedings against her was unconstitutional,” ruled the judges.
The judges also dealt a big blow to the DPP and the DCI, ruling that they have no capacity to bring charges to remove not only the DCJ but also any judge from office.
According to the judges, State agencies and State officers have no locus standi (capacity to bring a charge) to file petitions before the JSC for removal of judges from office since the Constitution reserves that right to ordinary citizens.
“The DPP and DCI are not ordinary persons as envisioned by the Constitution to seek the removal of a judge from office. We declare that they are State offices which do not fall within the category of ordinary citizens and their decision to bring the charges against her was null and void,” they ruled.
They stated that the JSC violated the DCJ’s rights by asking her to respond to the integrity questions when they should have first ascertained if the DPP and the DCI had the authority to file a complaint of misconduct against any judge.
The judges ruled that the dispute surrounding Justice Mwilu’s integrity was still pending before the Court of Appeal after the DPP appealed a previous High Court decision that stopped his office from charging her.
They stated that the JSC should have not been in a rush to commence hearing the petitions seeking Justice Mwilu’s ouster and should have waited the Court of Appeal outcome to safeguard the mischief of arriving at conflicting decisions.
On claims by the DPP and the DCI that the High Court allowed them to file the petition to remove the DCJ at the JSC, the judges stated that the decision only stopped them from charging her on account that complaints of misconduct against judges should not constitute criminal charges.
“The decision to file the petition before the JSC is not supported by any High Court decision. There is no evidence that the judges had given the DPP and the DCI permission to seek the removal of the DCJ from office,” they ruled.
The judges further found that the evidence against Justice Mwilu, which the High Court had found to have been illegally obtained, was the same on being relied on by the JSC and which is still subject of the appeal filed by the DPP.
They added that the three other petitions filed by different individuals seeking to remove the judge from office can also not proceed and stopped the JSC from considering them until the case before the appeal is finalised.
The three judges also upheld Justice Mwilu’s arguments that allowing the JSC to proceed with the petitions would amount to double jeopardy since the DPP had also appealed against the decision stopping her prosecution.
The long drawn fight between the DCJ, DPP and DCI started in August 2018 when prosecutors took her to a magistrate’s court ready to charge her with abuse of office in relation to claims of fraudulent transactions at the collapsed Imperial Bank. Justice Mwilu was to be charged alongside lawyer Stanley Muluyi of abuse of office, failing to pay taxes and forgery involving a total of Sh80.7 million between 2013 and 2016.
In May 2019, the High Court declared the intended prosecution was illegal since the evidence was illegally acquired. The DPP and the DCI then filed the petition before the JSC but in August 2019, Justice Mwilu went back to the High Court to stop the commission from hearing and determining the petitions on account that they violated her right to fair trial.
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