NAIROBI: The ongoing altercation between the Mombasa Branch of the Law Society of Kenya, the Chief Justice and the Judicial Service Commission (JSC) where over 800 signatories are seeking the Chief Justice’s resignation, rightly or wrongly, for alleged impropriety and breach of law, highlights a fundamental constitutional lacuna.
Looking at the unfolding scenario, one would ask: what mechanisms have been put in place to discipline judicial officers and in particular judges?
The first port of call would be the Constitution, which sets up the Judiciary and provides for the offices of the judges serving in various superior courts.
Under Article 260 of the Constitution, judges are designated as State officers and as such, are required to abide by the provisions of Chapter 6 on leadership and integrity.
The JSC, chaired by the Chief Justice, comprises judges, magistrates, the Attorney General, members of the Law Society of Kenya, a representative of the Public Service Commission and two other persons to represent the public, is responsible for the discipline of judicial officers.
In cases of misconduct by a judge, the existing laws point only to removal of the judge from office.
Under Article 168 of the Constitution, the removal of a judge is based on five grounds: inability to perform the functions of the office arising from mental or physical incapacity; a breach of the code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence or gross misconduct or misbehavior.
The process of removing a judge of a superior court which includes the Chief Justice is commenced under Article 168 (2) by the JSC, either on its own motion or by the filing of a petition by any person to the JSC. To remove a judge from office, a petition for removal of the judge is submitted to the JSC, which then forwards the petition to the President. The President under Article 168 (5) shall suspend the judge and appoint a tribunal.
If the petition seeks removal of the Chief Justice from office, a tribunal consisting of the Speaker of the National Assembly (who chairs the tribunal), three superior court judges from common law jurisdictions, one advocate of 15 years standing and two other persons with experience in public affairs is constituted.
In the case of a judge other than the Chief Justice, the same process applies, but the tribunal comprises a chairperson and three other members being persons who have either held office as judges of a superior court or are qualified to be appointed as such, an advocate of 15 years standing and two other persons with experience in public affairs.
The tribunal then inquires into the matter and makes recommendations to the President.
Interestingly, a judge who is the subject of an inquiry may lodge an appeal to the Supreme Court upon receipt of the tribunal’s recommendations, effectively halting any action the President would have taken until after the appeal is heard and determined.
Thereafter, the President is bound by the Supreme Court’s decision.
The involvement of the JSC in the process of the removal of judges from office only serves to muddy the waters.
As it stands, JSC recommends to the President persons to be appointed as Judges and in the event of alleged misconduct, receives complaints, investigates the same and almost adjudicates on the merits or demerits of the complaint, which is to be rubber-stamped by a tribunal and which ultimately gives its recommendations to the President on whether or not the Judge should be removed.
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In the case of magistrates, registrars, deputy registrars, kadhi’s and presiding officers in tribunals, the commission has disciplinary powers, which are delegated to the Chief Justice.
These disciplinary powers include the power to interdict, suspend and administer a severe reprimand.
A committee constituted by the commission deals with issues of appointment, discipline and removal of the said officers.
In contradistinction, in the USA any person may file a complaint under the Judicial Conduct and Disability Act.
In the UK, there is the Judicial Conduct Investigations Office, which receives and investigates complaints against judges and thereafter provides advice and assistance to the Chief Justice and Lord Chancellor, who are jointly responsible for the discipline of judges.
In Australia, complaints on judicial conduct are made in writing to the Chief Justice, who makes a preliminary assessment and may either summarily dismiss the complaint if it has no merit, deal with the complaint in consultation with the judge concerned, establish a conduct committee or refer the complaint to the Attorney General.
It is only in severe cases that parliamentary consideration of removal from office may be recommended.
It is clear that there is urgent need to review the laws on the discipline of judicial officers and more so for conduct that does not merit the removal from office.
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