Removing a judge is a lengthy procedure

Deputy Chief Justice Philomena Mwilu is the first top judicial officer to be charged with graft after the new Constitution came into force. PHOTO | FILE | NATION MEDIA GROUP

By  ABIUD OCHIENG

What you need to know:

  • If the judge under investigation does not appeal, the President is expected to act in line with the tribunal’s recommendations.

  • The challenge may however be that if a tribunal is formed, Justice Mwilu could raise the issue that the matter is sub judice.

  • The outcome of the trial at the magistrate’s court can also be appealed at the High Court, Court of Appeal, and the Supreme Court.

Deputy Chief Justice Philomena Mwilu is the first top judicial officer to be charged with graft after the new Constitution came into force.

However, even if she were to be removed from office, it will be a long procedure that might take well over a year.

Given that Ms Mwilu was charged before a criminal court in Nairobi on Tuesday, the Judicial Service Commission (JSC), which is mandated to receive, investigate and resolve complaints against judges, might recommend to President Uhuru Kenyatta to form a tribunal to investigate her for gross misconduct.

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COMMISSION

Chapter 168 of the Constitution provides that a judge of a superior court may be removed from office only on the grounds of mental or physical incapacity that hinder his or her ability to perform his or her duties, breach of code of conduct, and gross misconduct.

However, the removal of a judge may be initiated only by the JSC on its own motion, or by an individual's petition to the commission.

If satisfied that the petition provides grounds for the judge's removal, the JSC sends the petition to the President, who within two weeks, suspends the judge and appoints a tribunal to investigate him or her.

RECOMMENDATIONS

The tribunal is expected to inquire into the matter expeditiously and report its findings and recommendations to the President. A judge who is not satisfied with the tribunal’s decision may appeal to the Supreme Court within 10 days of the tribunal’s report.

If the judge under investigation does not appeal, the President is expected to act in line with the tribunal’s recommendations.

The challenge may however be that if a tribunal is formed, Justice Mwilu could raise the issue that the matter is sub judice (pending in court) and therefore the tribunal cannot proceed to determine her removal based on these issues because of the presumption of innocence until proven guilty in the criminal trial. The tribunal would in that instance, have to await the outcome of the criminal trial.

The outcome of the trial at the magistrate’s court can also be appealed at the High Court, Court of Appeal, and the Supreme Court.

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