JSC appeals High Court ruling on handling of petitions seeking removal of judges

JSC secretary and Chief Registrar of the Judiciary Winfridah Mokaya. /JUDICIARY

The Judicial Service Commission (JSC) has appealed a High Court ruling, saying it constrained its constitutional mandate to handle petitions filed against judges.

In a statement issued on Wednesday, December 24, JSC secretary Winfridah Mokaya said the commission respects the authority and decisional independence of courts, but disagrees with a High Court judgment delivered on December 18.

The proceedings in the matter arose from a complaint lodged before the JSC against a judge by an advocate acting for an accused person appearing before the judge.

Mokaya said aspects of the judgment in the petition seeking the removal of the judge violated JSC's constitutional mandate to make decisions in such petitions as stipulated by Article 168.

The High Court rendered its verdict in a counter petition filed by the judge challenging JSC's jurisdiction to handle the case, even as the commission was yet to schedule the matter for consideration before a duly constituted panel.

The petition questioned the absence of gazetted regulations governing the handling of complaints against judges and alleged interference with judicial independence.

A three-judge bench held that the JSC process would amount to an illegality in the absence of gazetted regulations.

In their view, the judges found that the existence of the regulations was a crucial safeguard to ensuring the fairness of the JSC’s administrative action, without which the outcomes of the process would be a nullity.

JSC disagreed with the observation.

"Article 168 vests in the commission the responsibility to receive, consider, and, where the constitutional threshold is met, act upon petitions for the removal of Judges of the superior courts, whether initiated by the commission on its own motion or upon petition by any person," Mokaya said.

In furtherance of Article 172 of the constitution, which expressly mandates the JSC to safeguard and advance judicial independence and accountability, Mokaya said the commission has sought redress against the High Court ruling.

"Consistent with the established principles of the rule of law and in line with its constitutional right to seek appellate redress, the Judicial Service Commission hereby confirms that it has filed an appeal against the said judgment."

Mokaya said the commission has taken the step in the public interest and for the purpose of obtaining guidance on the proper interpretation and application of Article 168 of the Constitution in relation to the commission's mandate.

The commission assured the public, the Judiciary and all stakeholders that it remains fully committed to executing its responsibilities with independence, integrity and strict fidelity to the constitution.

Mokaya said the JSC remains unwavering in its commitment to respect court decisions and utilise all lawful avenues provided within the legal framework when dissatisfied with a judicial determination.

The Law Society of Kenya, which said it also disagrees with the High Court ruling, said the dispute should serve as a corrective turning point for the Judiciary.

"The gazettement of procedures of the JSC must forthwith be treated as a matter of extreme urgency, and should be atop the commission’s priorities going into the new year," LSK president Faith Odhiambo said.