When the President appointed a tribunal in March to investigate the conduct of Justice Jackton Ojwang of the Supreme Court those who had followed the case should have been alive to the reality that it would both be about the judge and the Judicial Service Commission and its processes.
The JSC is constitutionally empowered to facilitate independence and accountability of the Judiciary. It interviews and recommends judges for appointment. The Constitution rationale was to insulate the Judiciary from interference by external forces.
One of the powers of the JSC relates to discipline of judges. It is empowered to receive complaints by way of petition and based on merits, submits it to the President if satisfied that it discloses grounds for removal from office.
The recognised grounds include gross misconduct or misbehaviour, incompetence, bankruptcy, breach of prescribed code of conduct and inability to perform due to mental or physical incapacity.
The complaints against Judge Ojwang’ were based on the grounds of misconduct, breach of judicial code of conduct and incompetence. The complaints against the judge related to a case that was heard by the Supreme Court and that involved parties from Migori, the judge’s home county. One of the complaints was that the judge was influenced through the construction of a road to his rural home.
After listening to witnesses, the tribunal reached the verdict that the Judge was not guilty of the charges levelled against him. It recommended to the President that the suspension of the judge be lifted, he be reinstated.
One of the issues that the decision raises is the power of JSC to discipline judges. It was one of the grounds on which the petition was hinged. The Judge was accused of undermining the constitutional mandate of the JSC by failing to appear before it when summoned. While the allegation was dismissed, the tribunal identified two issues that require more in-depth examination.
First, the role of JSC as a constitutional commission and its interplay with the functioning of the Judiciary. Does it enhance or undermine judicial independence?
The question arises from the complaints raised in the course of the petition and that has also been in public domain regarding its functioning to the effect that some complaints before the JSC are disguised attempts to serve as an appeal against decisions by judges.
In this instance the question arises whether the JSC turns itself into a judicial body making judicial determinations.
The Final Report of the Task Force on Judicial Reforms chaired by Justice William Ouko made recommendations that influenced the content of the Constitution and the structuring and functioning of JSC. Thus, the JSC was introduced to enhance judicial independence.
With 10 years in implementing the 2010 Constitution, there is a need to assess whether the JSC is faithfully delivering on this constitutional mandate.
The findings of the Ojwang’ Tribunal give an opportunity for a robust discussion. It is trite that the exercise of constitutional power must be circumscribed to avoid abuse. This is true for all constitutional offices. It is true for Judges and for the JSC. If either of the two offices mentioned are not held to account, then abuse of power is likely.
Second is the way the discipline of judges and judicial officers and staff is undertaken. This raises the issue about the powers of the Chief Justice and those of the JSC.
It may be time to clearly delineate who does what, bearing in mind that the CJ also doubles as the chair of the JSC. The Judiciary also has to reactivate the office of its Ombudsperson.
Lastly, the country should debate about what other remedies are available over and above removal from office when the JSC receives petitions against judges.
As debate on a possible referendum continues this is an area that requires discourse.
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