Judiciary on the dock as judges’ conduct is questioned

The Judiciary is staring at challenging times ahead as highly contentious concurrent activities stack up against each other.

One tribunal has already been formed against Supreme Court judge Justice Jackton Ojwang while three others are coming up against justices Njagi Marete, Martin Muya and Lucy Waithaka.

DEEPER MALAISE

Chief Justice David Maraga, in his capacity as chairman of the Judicial Service Commission (JSC), said in a statement that the petitions against judges Marete, Muya and Waithaka “disclosed grounds for removal under Article 168 (1) of the Constitution and made a decision to Petition the President for the appointment of Tribunals under Article 168 (5) of the Constitution.”

Besides, there are tens of complaints against judges that the JSC is still looking at, including against the Chief Justice and his colleagues in the Supreme Court.

The number of complaints is a matter of public concern as it points at the rot within the Judiciary and questions are being why these are just coming up now yet some of them were filed more than a year ago.

For some, the number of complaints and the ones so far referred to President Uhuru Kenyatta to form tribunals is a manifestation of the deeper malaise in the Judiciary.

A member of the inaugural JSC after the promulgation of the Constitution in 2010, Ahmednasir Abdullahi, says the tribunals that have been formed or recommended by JSC are a reflection of the sad state of the Judiciary.

“If you look at the number of complaints that the JSC has been sitting on in the last three years, it is astronomical. The complaints are so many and the JSC has been sitting on them, providing protection to these judges, which has emboldened the judges. Now, because of public pressure, the JSC has started to look into the complaints. But still, there are tens of others still pending,” he said.

Lawyer Kibe Mungai, however, sees nothing wrong with the number of disciplinary cases against judges and magistrates.

CASE BACKLOG

In fact, he says, “we should be proud of the fact that they are there and they are being heard. In the past, there were no mechanisms for citizens to make complaints and have them resolved. But now, with some reasonable degree, we have a valid complaints mechanism.”

The divided JSC is also currently undertaking recruitment of judges — 11 for the Court of Appeal, 20 for the Environment and Land Court, and 10 for the Employment and Labour Relations Court.

At the same time, there are a number of pending high profile retirements. Chief Justice David Maraga will retire in 2021 while suspended Justice Ojwang, unless removed by the tribunal, will leave in 2020.

At the Court of Appeal, Justices Erastus Githinji, Philip Waki and Alnashir Visram will retire this year. Justice Githinji will leave in June while his two colleagues will retire in September.

While the post-2010 Judiciary has done fairly well in reducing the case backlog, the development of court infrastructure and increasing the number of judicial officers, one wonders how it will emerge from the cases unscathed.

Already, the handling of the complaints against Supreme Court judge Justice Njoki Ndung’u has put the JSC in an uncomfortable position after twice deferring the announcement on the matter.

When he emerged on Thursday, Mr Maraga took issue with the media over its reportage of the Njoki Ndung’u issue as he announced that the petition against her had been withdrawn by the petitioner, lawyer Apollo Mboya. The JSC was looking into the matter in 2019, two years after Mr Mboya had written to the commission informing it that he was no longer keen on pursuing the complaint because of frustration by JSC. The petition was lodged on October 21, 2015.

INSUBORDATION

Mr Abdullahi, a fierce critic of the Judiciary under Mr Maraga, says the situation is not looking good.

“The Judiciary is in a very sad state of affairs. What we are seeing is two or three years of complete inertia on the part of the JSC and the Chief Justice. This is what you get when you hide your head in the sand and assume there is nothing wrong in the Judiciary,” said Mr Abdullahi.

Mr Mungai, however, says the activities the Judiciary is now handling “are normal constitutional processes that are provided for in the law.”

The Judiciary, and the Supreme Court in particular, has also been hit with a wave of indiscipline among judges. Insubordination, leaks of internal deliberations to senior people in the Executive and judges holding briefs for political parties and politicians have put a blot on the apex court, which is still struggling to find its rightful place in the charged political and judicial spaces. A Judiciary insider has described the leaking of internal deliberations as a “very good ground for removal of a judge from office.”

Besides the matters mentioned above, the Judiciary has for long been struggling with budgets as the Executive squeezes its allocation. Despite having presence across the country, the Judiciary still gets just half what Parliament gets. The Supplementary Budget estimates currently before Parliament should be coming with some good news on allocations for infrastructure development