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My attention has been drawn from a High Court judgment issued by Meru high court restraining Deputy Chief Justice Philomena Mwilu from acting as Chief Justice. The judgment read, "That a conservatory order be and hearby issued against the first respondent(DCJ) restraining her continued occupation of the offices of Deputy Chief Justice of the Republic of Kenya, judge of the Supreme Court, Member of the Judicial Service commission and Ombudsman of the Judiciary pending the hearing and determination of this application." 

 Deputy Chief Justice Philomena Mwilu. Photo/COURTESY

This judgment comes at a time when the Judiciary is in the process of recruiting Chief Justice and a Supreme Court Judge.

The greatness of a nation lies in its fidelity to the constitution, adherence to the rule of law and above all, respect to God. These words were uttered by emeritus Chief Justice David Maraga when he nullified 2017 Presidential Election. All state officers assume office by reading oaths and affirmation spelt out in third schedule of the constitution read; I will obey, preserve, protect and defend the Constitution of Kenya.

Article 1 read together with Article 2 states that the constitution is the supreme law of the republic. Every person has an obligation to respect, uphold and defend the Constitution. I am writing this opinion to defend the Constitution because it is my fundamental right and duty to do so.

While I support fight against corruption as well as Chapter Six on Leadership and Integrity, I believe that this should be done within the law and the constitution. I am aware of a judgment made by Justice Mumbi requiring any state officer accused of corruption and taken to court to step aside pending hearing and determination of his case like it happened to former Governors Ferdinand Waititu, Mike Sonko and former Treasury cabinet secretary Henry Rotich. This actually set a good precedent and was a big win towards the fight against corruption. Indeed Caesar’s wife must be above suspicion.

The constitution sets out the process and procedures of removing a state officer from office on various grounds like incompetence, gross misconduct or violation of the constitution and other laws. In the case of a president, the procedure of removing him/her is stipulated under article 144 and 145.

Article 168 states the procedure of removing a judge or judicial officer from office. Sub article 2 states that the removal of a judge maybe initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission. Sub article (5b), in the case of a judge other than chief Justice, appoint a tribunal.

The functions of the Judicial Service Commission (article 172) includes to review and make recommendations on conditions of service of judges and judicial officers, receive complaints, investigate and remove from office or otherwise discipline judicial officers. It is quite clear that any matter emanating from disciplining, suspending or removing a judge from office is the responsibility of Judicial Service Commission. Maybe that high court judge should read article 165 to understand the jurisdiction of the High Court. A judge cannot issue an injunction restraining another judge from acting.

Class monitor disciplining Head boy

The irony is that a High Court judge is suspending Deputy Chief Justice who is her boss. That is like a class one monitor disciplining a school head boy. Separation of powers should not only exist between the three arms of government, it should also apply among Judiciary members. If this ruling is the only thing to go by then it means that the Supreme Court currently isn't properly constituted and cannot sit as a court because it lacks quorum with Maraga having retired same to Jackton Ojwang and now Mwilu suspended, for it to raise quorum it should have five judges.

The Judicial Service Commission should therefore ensure that whoever becomes next Chief Justice is someone who can fit in Maraga's shoes. Someone who will ensure the Judiciary is independent and adheres to provisions of article 159(Judicial authority) and cannot be compromised to make a ruling in favour of the Legislature or Executive and makes independent decisions which are within the law and the constitution.

President Uhuru Kenyatta once promised to revisit the Judiciary. His administration has also failed to comply with court orders severally. He is also yet to swear in the 41 judges (One passed away, he was husband to my Political Science COD).Maybe he is fulfilling his promise of revisiting the judiciary. Who knows...

KITONGA MUSYOKA comments on legal and constitutional issues.

Story edited by MUSYOKA NGUI


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