The folly of having an almighty JSC

Reports have recently appeared in the Press giving details of the ongoing probes by the Judicial Service Commission (JSC) in respect of alleged misconduct of 20 serving judges.

Judicial misconduct in independent Kenya's history is not new. A former Chief Justice has vividly highlighted in a book the said intrigues and behind-the-scene manipulations, all in the name of justice.

There have been internal investigations by ad-hoc committees and task forces, investigations, vetting process, and resignations in dubious and unexplained circumstances. Tribunals to investigate misconduct of judges have disposed allegations of misconduct. Many judicial officers have made unceremonious exit when confronted by allegations of impropriety. It must be emphasised that judicial misconduct is not only a Kenyan weakness. What those who are supposed to be the pillars of justice do, or not do, in other common-law jurisdictions such as Britain, America and India can be a subject of a horror documentary.

Under the Constitution, judicial misconduct is acknowledged and it encompasses breach of code of conduct prescribed by Parliament, incompetence, or gross misconduct or misbehaviour. Kenya with a population of 40 million people is served by a small Judiciary. There are seven Supreme Court, 26 Court of Appeal and 69 puisne judges. Industrial Court has 12 judges and Environment and Land Court has 16 judges with 455 magistrates. Total strength of the Judiciary is therefore 585. (UK with a population of 64 million has over 30,000 judicial officers) Controlling misfeasance among judicial officers is, however, the dilemma bearing in mind conflicting laws.

The cumulative effect of the Constitution, the Public Officer Ethics Act and the Judicial Service Act 2011 is that judges have a distinctly different process of being dealt for alleged misconduct. That is by setting up a tribunal by the President at the behest of the JSC after an in-house enquiry. Removal of a judge can only be addressed through JSC acting on its own motion or on the petition of any person. JSC is obligated to send the petition to the President who must within 14 days set a Tribunal.

JSC is also mandated by the Constitution to receive complaints against, then investigate and remove from office or otherwise discipline registrars, magistrates and all other judicial officers and other staff of the judiciary in manner prescribed by the Judicial Service Act, 2011. But by law JSC has delegated these powers to the Chief Justice who has to follow a laid down procedure respecting principles of natural justice in his deliberations.

The Chief Justice has additionally set up an in-house judicial ombudsman whose mandate in the website is given as "mandated to enforce administration of justice in the Judiciary by addressing maladministration through effective complaint handling structures" The legality of the judicial ombudsman is not premised on any legal provision but the office has been effective in dealing with day to day lapses in the Judiciary such as lost files, delay in giving judgements, getting proceedings typed etc. The ombudsman has no disciplinary powers over any judicial officer.

The Judicial Service Code of Conduct and Ethics was promulgated in 2003 when the Constitution and the Judicial Service Act came much later. Judges can be removed, yes, but there is no legal machinery to discipline them.

It is most unfortunate that a proved complaint of whatever nature against a judge, it would appear, must result only in removal. This state of affairs is against the spirit of international law as applicable under the Judicial Integrity Groups "Bangalore Principles". Against all this background the matters of judicial ethics, independence, impartiality, integrity, propriety, competence and diligence have not received attention whatsoever from the Ethics and Anti-Corruption Commission. Matters of unfair decisions, bias, conflict and interest, corruption are matters which remain beyond the boundaries of judicial misconduct.

In the UK there is the Judicial Conduct Investigations Officer which took over the Office of Judicial Complainants from October, 2013. In the USA, the Judicial Conduct and Disability Act of 1980 allows anyone to file a complaint in a federal court that a federal judge has engaged in misconduct or become disabled. Should Kenyans have an independent body to deal with erring judicial officers? It can be surmised that often judges and magistrates are treated most unfairly when disgruntled litigants embark on making unfounded allegations against judicial officers in public for a and without being given a hearing.

JSC's role in dealing with matters of misconduct is sadly multifunctional and contrary to established principles of neutrality. It receives complaints, investigates the same and passes a judgment on the bona fides of the complaint and then passes it on to the Tribunal or the CJ apparently for regurgitation. Is JSC an investigator, prosecutor and judge and even an executioner in its own case?

We need to rethink about judging the judges.