Judges Isaac Lenaola, Smokin Wanjala, Philomena Mwilu, Martha Koome, Mohamed Ibrahim, Njoki Ndung’u and William Ouko during the presidential election petition in September 2022.
The Judicial Service Commission (JSC) should not consider complaints against judges without first enacting the rules of procedure to govern disciplinary proceedings, a civil society group has told the High Court in an effort to stop the removal of Supreme Court justices.
At the same time, one of the petitioners wants the case filed by Chief Justice Martha Koome challenging her trial at the JSC Disciplinary Committee dismissed.
Civil society group Katiba Institute yesterday filed documents at the High Court in Nairobi supporting the action taken by the Supreme Court judges, including Ms Koome, against the disciplinary process started by the JSC last month.
“Failure to enact the rules of procedure governing the disciplinary proceedings as directed by the court is an affront to the Constitution and Article 10 values, which include good governance, transparency and accountability and the Bill of Rights,” Katiba Institute’s lawyer Malidzo Nyawa said.
The organisation argues that the petitions filed by the Supreme Court judges, with supporting documents, provide compelling evidence of a threat and potential violation of the Constitution by the commission.
It says the JSC is mandated to protect judges from vilifying speech online and social media conversations.
According to Katiba Institute, the decision of the JSC to ask the seven Supreme Court judges to respond to the removal petitions threatens judicial independence, constitutionalism and the rule of law.
“It is contrary to public interest. The commission’s action will result in a chilling effect, as judges may not render adverse decisions against state organs or private parties for fear of retaliation,” Katiba Institute said in the court papers.
One of the petitioners calling for the removal of the Supreme Court judges, Nelson Havi, also filed documents to back his position.
According to the city-based lawyer, Ms Koome has no legal capacity to sue the commission as the head of the Judiciary and that she cannot file a case in her personal capacity.
Mr Havi reminded the court of its ruling that stated that the High Court
cannot stop the JSC in the hiring or removal of a Chief Justice.
“The Chief Justice, the head of an arm of government and a state officer, is not “a person” for the purposes of institution of a petition for enforcement of the Bill of rights or institution of a petition for enforcement of the Constitution,” Mr Havi said.
“She cannot, therefore, sue in her capacity as CJ and in the public interest as she has done.”
In a preliminary objection and replying affidavit to the cases filed by the Supreme Court justices, Mr Havi says the High Court has no authority to look into the matters raised by Ms Koome on her removal from office.
In the court papers, Mr Havi says in a separate dispute involving interviews of Chief Justice job applicants in 2021, the High Court said it had no authority to inquire into proceedings by the JSC for the appointment or removal of the CJ.
“A legitimate question will be asked: what has changed to clothe the High Court with jurisdiction to stop the JSC from considering a petition seeking the removal of the Chief Justice from office when it did not have jurisdiction to inquire into the process of her recruitment in 2021,” Mr Havi said.
Creating a vacuum
Demanding the dismissal of Ms Koome’s case, the lawyer said he believes the remedy available for the CJ is subjecting herself to the commssion’s disciplinary process, not going to court.
“My petition at the JSC does not seek the abolishment of the Supreme Court. It seeks the removal from office of the seven judges,” Mr Havi said.
He denies the Chief Justice’s claim that the intention of the petitions is to create a vacuum in the Judiciary.
“It is imperative that the action by Chief Justice Koome before the court be struck out and dismissed, and the order stopping the commission from considering the ouster petition discharged for the petition to be considered by the commission,” Mr Havi said.
