The Judicial Service Commission has asked Parliament to remove the provision in the Constitution of Kenya (Amendment) Bill, 2020, giving the President powers to appoint the Judiciary Ombudsman.
The JSC said the provision, if approved, will place the Judiciary under the executive signal and herald a return to the historical challenges that have tormented the arm of government.
Instead, it is recommending the establishment of an internal independent office of the ombudsman whose head should be an employee of the Judiciary.
In their submissions before the joint legal committees of the Senate and the National Assembly on Thursday, the JSC noted that the Judiciary already has an office of the ombudsman, which is domiciled in the office of the Deputy Chief Justice.
“The proposal by the JSC is to restructure that office for more effectiveness. The office of the ombudsman should be established by the JSC and the ombudsman to report to the JSC, through the Chief Justice,” JSC said in a memorandum signed by its secretary Anne Amadi.
“JSC be granted power to deal with minor disciplinary matters concerning judges and whose threshold may not warrant the formation of a tribunal.
“Other stakeholders supported this proposal and noted that that existing structures such as the JSC’s Office of the EACC and the Commission on Administration of Justice, would complement the work of the office of the ombudsman and ensure broader accountability."
The proposals were tabled before the committee co-chaired by Nyamira Senator Okong’o Omogeni and Kangema MP Muturi Kigano, which is carrying out public participation on the constitutional amendment bill.
JSC says having the ombudsman appointed by the Executive poses the danger of interference with the Judiciary and may erode the gains in Judicial independence under the current Constitution.
The commission noted that the roles vested in the proposed office of the ombudsman are in direct conflict and contradiction with the constitutional roles that are vested in the JSC.
“There already exists an office of the Judiciary Ombudsman, which only requires restructuring for full effectiveness rather than radical new proposals that ignore the current operations and activities,” Amadi, who is the Chief Registrar of the Judiciary, held.
“Matters of accountability of the Judiciary should be sought and defined within the current constitutional framework, which safeguards and guarantees judicial independence.”
Also opposed is the proposal in the BBI bill that seeks to enhance the number of Executive appointees in the JSC from four to five, with the commission saying the current composition should remain undisturbed.
They held the current composition should be retained, amendments to the Constitution should be undertaken to ensure the JSC representative of the subordinate courts is elected by magistrates, Kadhis and tribunals to have a holistic representation
