Kethi D Kilonzo
A healthy nation requires an independent Judiciary. One whose members can make decisions without fear or favour. Only an independent Judiciary can enforce and guarantee individual rights and liberties. Is the summoning of the JSC by a Parliamentary Committee a threat to the independence of the Judiciary? No. The JSC is not the Judiciary.
The JSC is an independent constitutional commission consisting of the Chief Justice, three judges, one magistrate, the Attorney General, two advocates, one nominee of the Public Service Commission (PSC), and two persons who are not lawyers nominated by the President. These commissioners, other than the CJ and the AG, have a limited time within which they can retain their position as commissioners.
The Constitution places the JSC on the same footing as other constitutional commissions. These include the Teachers Service Commission, the PSC, the IEBC, the National Land Commission, the National Police Service Commission, and the Parliamentary Service Commission.
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The JSC does not exercise judicial authority. This power is reserved for courts and tribunals established by and under the Constitution. The Judiciary consists only of judges and magistrates. They do not earn sitting allowances. They do not travel out of the country on fact-finding missions. They do not recommend the hiring of other judges and magistrates. They do not hear complaints concerning their colleagues. They sit in court day in day out, hear parties and retire to their offices or homes to make their decisions long after everyone has left their court rooms.
The successes and the failures of the JSC are not the successes and failures of the Judiciary. After all the Judiciary has only five representatives in the JSC. The members of the Judiciary do not sit in the commission as judges or as magistrates. At the JSC they are commissioners, like any other. No more or less. It is therefore a fallacy to imagine that the JSC would enjoy the same independence and privileges as the Judiciary. And if you are in doubt the Constitution should put that doubt to rest.
The JSC is not a judicial body. It is not an arm of government. It is an administrative body. It is independent; but independence does not connote lack of accountability. Under the Constitution, one of the functions of the JSC is to promote and facilitate the accountability of the Judiciary. To whom is this accountability owed? And how is this accountability to be exercised if the JSC is only answerable to the JSC?
All constitutional commissions are required by the Constitution to prepare an annual report and present it at the close of the financial year to the President and Parliament. Can the JSC present an annual report to Parliament and fail to attend to the relevant committee to explain the contents of the report?
The Constitution gives Parliament the power to promote democratic governance, to represent people and special interests, to deliberate and resolve issues of concern to the people and to exercise sovereignty as elected representatives. Every person has the right to petition Parliament to consider any mater within its authority. Like any other Constitutional Commission, JSC is not subject to direction or control of any person or authority, but it remains accountable to the people of Kenya through Parliament.
Parliament and any of its committees have power under the Constitution to summon any person to appear before them for purposes of giving evidence or providing information. The committees have the same power as the High Court to enforce the attendance and examination of witnesses and to compel the production of documents.
The relevant parliamentary committee, like the High Court, can issue warrants of arrest against any person who fails to honour summons to attend before it.