RIENYE: Have a permanent tribunal for judges

The turmoil in the Judiciary following allegations of impropriety against judges of the Supreme Court has triggered a serious crisis that threatens to erode public confidence in our courts.

That the country’s apex court is now mired in a storm of allegations of misconduct involving five of its six judges is a manifestation of a deeper, underlying crisis that has been slowly engulfing the Judiciary in recent years.

It is an open secret that, despite the much-hyped ‘radical surgery’ of 2003, the Judiciary is once again embroiled in corruption. The ensuing public perceptions of lack of impartiality and integrity serve as a grave indictment of the institution.

Of late, several judges and magistrates have been accused of all manner of impropriety — including receiving bribes, partisanship and conflict of interest.

I will not delve into individual cases but, to paraphrase the famous quip by Marcellus in William Shakespeare’s play Hamlet, something is rotten in the Judiciary.

The constitutional mandate of investigating and removing judges from office lies with the Judicial Service Commission.

Article 168 of the Constitution provides that, that can only be initiated by the JSC acting on its own (suo moto) or on a citizen’s petition.

Grounds for such removal from office include gross misconduct, or misbehaviour, and incompetence. The Judicial Service Commission Act provides a statutory framework to govern that.

A petition on grounds of misconduct was filed against Justice Prof Jackton Ojwang of the Supreme Court by aggrieved individuals. Justice Ojwang has since been suspended by the President, who formed a tribunal to investigate him.

There are other numerous petitions pending against judges of the superior courts, including the Supreme Court.

The JSC is caught up in a vortex of squabbles pitting entrenched interests keen on controlling its composition and operations. This raises pertinent questions as to how impartial and effective it can be in investigating misconduct by judges.

Like Caesar’s wife, the probity of the JSC should, and must, not come into question. But it is suffering a credibility crisis and some of the members are conflicted.

Would a judge sitting on the JSC fairly investigate his or her colleagues? How can a representative of the Law Society of Kenya investigate a judge before whom they have appeared in court?

This is, perhaps, the opportune time to rethink the legal mechanism for removal of errant judges from office to make it more robust and effective in addressing the ethical crisis the JSC and Judiciary face.

Parliament should consider amending the JSC Act to create an independent tribunal, separate from the commission, whose role is to investigate judges for gross misconduct and incompetence.

Although the Constitution and the JSC Act provide a clear mechanism for the process, the proposed tribunal would be tasked with conducting thorough investigations and making appropriate recommendations to the JSC. It would, therefore, complement the JSC’s role of enforcing probity and integrity among judges.

The primary role of the tribunal would be to receive and review evidence of alleged misconduct levelled against a particular judge.

The proposed tribunal should comprise highly experienced and eminent persons — including respected jurists and civil society representatives, religious bodies, the public service, professional organisations and trade unions.

The chairman of the tribunal should be a retired judge of a superior court, appointed by the President. Such a judge must not have held any judicial office or been in active practice for at least 10 years. They must also not have held political office or been an official of a political party.

The tribunal would regularly review the contribution of judges to the rule of law and advancement of jurisprudence. It should be done every five years.

Upon such review, the tribunal would certify the suitability of a judge to continue holding office or otherwise recommend appropriate action by the JSC. Non-certification could lead to removal of a judge.

The threshold of the evidence should be so high as to prevent the tribunal being used for witch hunt.

To ensure the tribunal focuses on its mandate, it should have independent and permanent status as opposed to being an ad hoc body set up for a particular judge. Members should serve for not more than 10 years.

Such a tribunal would act as an effective check and counterweight against lethargy or political or judicial capture of the JSC.