JSC has no power to punish judges, court rules

The Judicial Service Commission has no power to discipline or admonish judges of superior courts as that is illegal.

Constitutional Court judge Weldon Korir on Thursday issued a declaration that the JSC violated the Constitution in purporting to admonish Supreme Court judges Mohammed Ibrahim, Jackton Ojwang' (now retired) and Njoki Ndung’u.

The judge ruled that the power of the JSC is limited to receiving or originating a complaint, investigating it and determining whether the complaint meets the threshold for removal of a judge on the grounds of Article 168(1) of the Constitution.

“Once it makes the determination, its mandate ends there. It cannot proceed to determine that the threshold has been met and proceed to recommend the removal of a judge. That is the province of the tribunal to be formed by the President,” Korir said.

It was important to recognise that a reprimand or admonition was a punishment recognised in employment law, said the judge.

“Since the JSC has no authority to discipline a judge, it follows that it cannot sanction a judge. An admonition or a reprimand is the same thing,” he said.

By admonishing the judges, the JSC crossed its constitutional and statutory boundaries which limit its powers to determining the merits of the complaint against a judge for the sole purpose of determining whether the petition should be sent to the President, judge Korir held.

The three supreme court judges had been hauled before the JSC by lawyer Apollo Mboya for alleged gross misconduct. Based on his petition, the commission made a decision that their conduct amounted to misconduct.

Mboya had accused the judges of absconding duty. But the three denied ever absconding duty and presented their defense before the commission through their lawyers. JSC then made a finding admonishing the judges but noted that the case did not warrant their removal from office.

Judge Korir’s orders arose out of two consolidated petitions.

The petitions revolve around the dramatic events that took place from September 2015 in respect of the question of the retirement age of the judges of the superior courts of Kenya who were in office when the current Constitution came into force in 2010.

Those happenings led to a petition to the JSC dated October 9, 2015.

On Thursday, judge Korir further issued a declaration that the actions of the JSC of issuing part-determination on Mboya’s petition seeking removal of the three judges and reserving other limbs of the petition to a futuristic date were unreasonable, irregular and unlawful.

Justice Korir also quashed the decision of the JSC of May 9, 2016, which found the conduct of judge Ndungu “unbecoming of a Judge of the Supreme Court and amounts to misconduct” and that she be “admonished for this misconduct”.

Among those who testified in the petitions before Constitutional Court was former CJ Willy Mutunga.  Justice Mutunga had noted that judge Ibrahim was willing to work.

Judge Korir wondered why and how the JSC found the judge guilty of misconduct.

“It is interesting and at the same time perturbing to note that although Justice Ibrahim was found “guilty” of misconduct and admonished like justices Ojwang' and Njoki Ndung’u, Dr Mutunga clearly averred in his further affidavit that Justice Ibrahim was willing to be allocated work,” said judge Korir.

"Why and on what grounds did the JSC find that Justice Ibrahim had misconducted himself? We will never know since the JSC did not place a reasoned decision before the Court.”

Edited by Henry Makori