Call to remove Chief Justice from JSC to avoid conflict

The now defunct Commission for the Implementation of the Constitution (CIC) wants the Chief Justice, who is the Judiciary head, removed from the Judicial Service Commission (JSC) , saying that leading the two institutions presents a conflict of interest.

The CIC -whose term came to an end on Tuesday - said that the CJ holds three key roles which compromises his ability in all.

Dual role

Currently, CJ Willy Mutunga also holds the position of a Supreme Court judge and is the president of the Supreme Court.

“These roles compromise the effectiveness of the Chief Justice in any one of these roles, thus prejudicing the effectiveness of the Judiciary generally,” the CIC said in its exit report.

“The dual role of being the CJ and chair of JSC can also lead to conflict of interest where the CJ is both an employee of, and accountable personally and on behalf of the Judiciary to the JSC, but also chairs this same body he is accountable to.”

For instance in case Justice Mutunga’s integrity as the head of the Judiciary was questioned, the JSC which he chairs would be charged with investigating him, thus the conflict.

The conflict in holding the two offices has also been exposed by the JSC’s decision to retire Supreme Court judge Philip Tunoi and Deputy Chief Justice Kalpana Rawal.

Administrative body

The top court judges earlier in September wrote to the JSC over the issue saying that the Commission cannot terminate the services of a judge.

The JSC is an 11-member administrative body of the Judiciary and is composed of the CJ, representatives from the Supreme Court, the Court of Appeal, the High Court, magistrate’s court, the Attorney General and advocates among others.