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Why Ombudsman shelved plan to question Koome, JSC members
Commission on Administrative Justice Chairperson Charles Dulo addresses journalists at their offices in Nairobi on February 28, 2025.
The Ombudsman has shelved plans to question Chief Justice Martha Koome and other members of the Judicial Service Commission (JSC) over non-disclosure of complaints against judges and judicial officers.
The Commission on Administrative Justice (CAJ) Chairman Charles Dulo on Thursday said they decided to halt the plan pending determination of an advisory opinion filed at the Supreme Court and also to pave way for mediation of the two constitutional bodies.
He disclosed that Ms Koome had honoured the summons through her legal team and that she had asked for a halt to the exercise.
Additionally, Attorney-General Dorcas Oduor had last week written to the CAJ, commonly known as the Ombudsman, asking for the same suspension, pending her advisory opinion on the veracity of (CAJ 's) powers to order Ms Koome and JSC commissioners to appear before it for questioning.
"The Office of the Ombudsman has today suspended its summons issued on February 28, 2025 to JSC members. The suspension was necessitated by the need to allow for inter-institutional engagement with JSC through dialogue, mediation and negotiation. The decision follows a request by the Chief Justice," said Mr Dulo.
The Ombudsman had issued summons to 10 JSC Ccmmissioners to appear before it to respond to allegations of failure to publish and publicise status report on all unresolved matters lodged against judicial officers.
The meeting was "for the purposes of interview, questioning or disclosure of information and production of documents in light of the alleged failures".
Ms Koome was to be accompanied at the meeting by Ms Oduor, the JSC Vice-Chairperson Isaac Rutto, and commissioners Mohammed Ibrahim, Fatuma Sichale, Antony Mrima, Everlyne Olwande, Omwanza Ombati, Caroline Nzilani Ajuoga and Jacqueline Ingutiah.
Alternative mechanisms
Mr Dulo explained that the suspension of the summons was in line with the promotion of alternative mechanisms of resolving disputes as envisaged in Article 159 (2) (c) of the Constitution.
The said provision obligates the courts and tribunals to embrace and promote alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
Mr Dulo added that the decision was informed by the pending determination by the Supreme Court of the Ombudsman's application for advisory opinion, which is scheduled for mention on April 3, 2025.
"In the matter, the CAJ has sought advisory opinion on how to handle complaints touching on Constitutional Commissioners and devolved governments in relation to its powers and limitations. Given that the Supreme Court is seized of the advisory, the CAJ has decided to suspend all the summons issued on February 28, 2025 to JSC members to allow these two processes to proceed without hindrance and to demonstrate CAJ's good faith and commitment to resolve the issues amicably," said Mr Dulo.
The tussle between the Ombudsman and the JSC involves the allegations that the latter has over the years been shielding judges, magistrates and Judiciary staff from public scrutiny by failing to publish and publicize full details of the complaints filed against them individually.
At the Supreme Court, the Ombudsman's lawyer Dudley Ochiel wants the Apex judges to address five questions surrounding the handling of complaints touching on constitutional commissioners and county governments.
Lawyer Ochiel wants the Apex to address "the extent of the CAJ’s mandate, functions, and powers under Article 59(2) and 252 of the Constitution concerning county government officers, state officers, or constitutional commissioners?"
The second question is whether CAJ has the ability to give binding directives that remediate complaints against county government officers, state officers, or constitutional commissioners.
Limits and powers
The Ombudsman also wants Supreme Court to pronounce itself on what the CAJ's limits and powers are under the law to issue summons to a witness from the county government officers, State officers or constitutional commissioners.
The fourth question concerns access to information. CAJ wants to know its limits and powers under the Access to Information law to issue summons or other orders requiring the attendance of any person and the production of any document or record relevant to any investigation by the commission over a county government officers, State officers, or constitutional commissioners.
Finally, the lawyer wants the apex court to advise on whether the CAJ, in exercising its powers, can summon county government officers, state officers, or constitutional commissioners.
"The Commission for Administrative Justice is currently grappling with unresolved complaints (some a decade old) by citizens against county governments. The concerned citizens, who cannot bear the costs of formal legal proceedings, approached the CAJ expecting redress. It's important to note that CAJ does not report to County Assemblies, yet the conduct pertains to the county government," says Mr Ochiel in the court papers.