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ELECTION 2022

Why BBI case places judges between rock and hard place

NATIONAL
By Kamau Muthoni and Paul Ogemba | Jan 18th 2022 | 4 min read

Chief Justice Martha Koome (second from right) with a section of judges at the Supreme Court Building, May 2021. [Collins Kweyu, Standard]

Supreme Court judges will today start hearing a case that would have touched on their welfare - including their hiring and firing - as an appeal seeking to revive the Building Bridges Initiative (BBI) starts in the top court today.

The Attorney-General is expected to make the first submission when the hearing start this morning.

Judges and magistrates had given proposals to the Judicial Service Commission (JSC) on what they thought would make a fully functional Judiciary. The same proposals were also submitted to the BBI) task force.

And now, the Supreme Court is being asked to determine whether the task force’s report, which culminated in the BBI Bill is constitutional or not. Both the High Court and Court of Appeal said it was not. Today, however, the Attorney-General will be seeking to demonstrate that the two lower courts were wrong.

Interestingly, before the Judiciary’s proposals were submitted to the BBI secretariat for consideration, there were allegations that the JSC left out key issues raised by judges and magistrates when it submitted the final document.

For instance, the judges had suggested that serving judges and magistrates should not sit in the JSC. They also wanted lawyers who were members of the commission to cease practicing to guard against conflict of interest.

Another proposal that was reportedly dropped required that recruitment and removal of Supreme Court judges be done by Parliament due to fears that the JSC lacked impartiality. The proposal to involve legislators in the hiring and firing of Supreme Court judges elicited divergent views.

“It was felt that the Supreme Court, being the superior court, should have a similar process of removing judges used in countries such as the US, the UK and India. In addition, judges said this would create impartiality as MPs would have to go through all evidence without vested interests,” an insider, who sought anonymity, told The Standard.

However, of all the proposals only two ended up in the final BBI document.

Now, the Supreme Court judges are being asked to rule on the document that would have had an impact on how they are hired and fired and other matters affecting their welfare.

For instance, the Judiciary, in its recommendations to the BBI task force, had asked for an annual allocation of 3.5 per cent of the national Budget. Judges wanted the Judiciary’s financial autonomy protected and guaranteed in the amended Constitution.

Supreme Court judges are being asked to rule on the document that would have had an impact on how they are hired. [Collins Kweyu, Standard]

On discipline, the Judiciary recommended that Article 168(1) of the Constitution be amended to empower the JSC to handle minor offences that may not require a recommendation for the establishment of a tribunal. It also suggested that the Chief Registrar of the Judiciary cease sitting as the JSC secretary. Instead, the Judiciary wanted a secretary who would also double up as CEO and accounting officer.

The Judiciary also wanted more judges appointed to the Supreme Court. It proposed that there be at least 11 Supreme Court judges but the quorum be retained at five. And for one to qualify to sit in the top court, the Judiciary proposed that such a person should have a minimum experience of 20 years.

It also proposed that the ceiling on the number of judges in the Appeal Court be removed to give more flexibility. And for one to be an Appeal Court judge, one had to have a minimum experience of 15 years while a High Court judge should have 10 years of experience.

The judges’ employer also wanted a Bill on their retirement, which has been held up in Parliament for 10 years, be enacted into law.

However, only proposals touching on qualification and disciplining of judges and magistrates reached the BBI secretariat.

Although the Judiciary had not made the proposal, the office of an independent ombudsperson for the Judiciary was introduced. This later became one of the points of departure between the BBI proponents and those opposed to it.

The final BBI report also proposed that a DCJ should serve for 10 years or opt to retire before the end of his or her tenure. The 2010 Constitution is silent on the tenure of a DCJ.

Although JSC had proposed that the DCJ’s role be spelled out clearly, the BBI document remained silent on that matter.

On poll petitions, the BBI report proposed that appeals in cases for MP, governor and senator seats should end at the Appeals Court. Under the 2010 constitution, such appeals can go up to the Supreme Court. The open election appeal process makes it impossible for courts to conclude petitions in the six months provided for in law.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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