EXPERT COMMENT

JSC can handle petition to remove Supreme Court judges

JSC fit for the job

In Summary

•JSC evaluates the commission, if convinced forwards it to the president who suspends the judge in question appoints a tribunal to look into the petition

•It is fully constituted as the last member, Justice Mohammed Warsame, took his position at the JSC too

Members of the JSC led by Chief Justice David Maraga during a press conference
Members of the JSC led by Chief Justice David Maraga during a press conference
Image: FILE

The Judicial Service Commission has the ability to handle the petition seeking removal of four Supreme Court judges: Mohamed K. Ibrahim, Jackton B. Ojwang, Smokin C. Wanjala and Njoki S. Ndung’u over the claims of impropriety in handling the Wajir Governor petition challenge.

It is fully constituted as the last member, Justice Mohammed Warsame, took his position at the JSC too.

A judge can be removed from office on grounds of inability to carry out the task of their office due to mental or physical incapacity, breach of the Code of Conduct, bankruptcy, incompetence or gross misconduct.

This may be initiated by the Judicial Service Commission on its own volition or arising from a petition from any person in writing setting out alleged details to constitute the grounds for judges' removal.

In this case,  as soon as the petition is received by the JSC it is forwarded to the respective judges for their responses as per the rules of natural justice. Once the responses are received, then the Judicial Service Commission will consider both perspectives.

If there is no merit, the petition will be dismissed on grounds of insufficient evidence. But if evaluated by justices and if they are satisfied that it discloses grounds for removal, then they will forward it to the President, with the recommendation that he create a special tribunal. 

Upon receipt of the petition and recommendation from the Judicial Service Commission, the President within 14  days suspends the judge from office and appoints a tribunal.

The tribunal will consist of a chairperson and three other members qualified to hold or have held an office of a judge in a superior court and have not been members of JSC in the last three years. Other members are an advocate with 15 years of practice, and two other people experienced in public affairs.

The tribunal inquires into the matters, considers them and makes binding recommendations to the President. Upon the exhaustion of any appeal process, the President will act as per the tribunal's recommendations.

Once a judge is removed the normal procedure of filling the vacancy will be followed.

The Law Society of Kenya President spoke to the Star