The Process Of Removal Of A Judge From Office
After a prolonged period of political rhetoric in which politicians accused the Judiciary of corruption and alignment with specific interests, Deputy President Rigathi Gachagua took decisive action on January 14, 2024. He announced his intention to submit a petition to the Judicial Service Commission on Thursday, January 18, seeking the removal of Justice Esther Maina over allegations of misconduct and corruption.
In public, he echoed Chief Justice Martha Koometo’s call for all Kenyans to come forward with evidence of misconduct or misbehavior, regardless of their location, including within the executive branch. People are encouraged to submit proof linking any judge to corruption to the Judicial Service Commission (JSC) or abstain from making sweeping condemnations.
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DP Gachagua asserted that he possessed proof connecting Justice Maina to corrupt practices. In July 2022, just before the general elections that brought Kenya Kwanza into office, Justice Maina instructed Gachagua to surrender Ksh 202 million, citing it as proceeds of corruption.
She mentioned that the legislator was unable to demonstrate the source of his fundraising. Why is it not possible to dismiss or remove a Judge from duty similar to other state officials?
The Constitution of Kenya, in Article 167, provides the Chief Justice and Judges with a guarantee of uninterrupted tenure throughout their time in office.
The Constitution states that:
(1) A judge shall retire from office on attaining the age of seventy years but may elect to retire at any time after attaining the age of sixty-five years.
(2) (5) The Chief Justice and any other judge may resign from office by giving notice, in writing, to the President.
The above-mentioned requires the establishment of a procedure for removing a judge if they have not reached the retirement age or have not willingly submitted a resignation letter to the President. Chapter 10, Article 168 of the Constitution of Kenya addresses this particular situation, providing specific guidelines, steps, and criteria that must be satisfied before resolving such a matter. The article outlines the process as follows:
(1) A judge of a superior court may be removed from office only on the grounds of–
(a) inability to perform the functions of office arising from mental or physical incapacity;
(b) a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;
(c) bankruptcy;
(d) incompetence; or
(e) gross misconduct or misbehavior.
Regarding Rigathi Gachagua’s situation, he has explicitly stated his intention to submit a petition citing “e. gross misconduct or misbehavior.” The rationale behind Deputy President Gachagua opting to bring this petition before the Judicial Service Commission (JSC) instead of pursuing a legal case in court is attributed to the following reasons…
(2) The removal of a judge may be initiated only by the Judicial Service Commission acting on its motion, or the petition of any person to the Judicial Service Commission.
(3) A petition by a person to the Judicial Service Commission under clause (2) shall be in writing, setting out the alleged facts constituting the grounds for the judge’s removal.
(4) The Judicial Service Commission shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President.
(5) The President shall, within fourteen days after receiving the petition, suspend the judge from office and, acting by the recommendation of the Judicial Service Commission–
(b) in the case of a judge other than the Chief Justice, appoint a tribunal consisting of–
(i) a chairperson and three other members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such but who, in either case, have not been members of the Judicial Service Commission at any time within the immediately preceding three years;
(ii) one advocate of fifteen years standing; and
(iii) two other persons with experience in public affairs.
(6) Despite Article 160 (4), the remuneration and benefits payable to a judge who is suspended from office under clause (5) shall be adjusted to one-half until the judge is removed from, or reinstated in office.
(7) A tribunal appointed under clause (5) shall–
(a) be responsible for the regulation of its proceedings, subject to any legislation contemplated in clause (10);
and
(b) inquire into the matter expeditiously report on the facts and make binding recommendations to the President.
(8) A judge who is aggrieved by a decision of the tribunal under this Article may appeal against the decision to the Supreme Court, within ten days after the tribunal makes its recommendations.
(9) The President shall act by the recommendations made by the tribunal on the later of —
(a) the expiry of the time allowed for an appeal under clause (8), if no such appeal is taken; or
(b) the completion of all rights of appeal in any proceedings allowed for under clause (8), if such an appeal is taken and the final order in the matter affirms the tribunal’s recommendations.
(10) Parliament shall enact legislation providing for the procedure of a tribunal appointed under this Article.
Accordingly, the Judicial Service Act No. 1 of 2011 Revised Edition 2012 [2011] states the following on the removal of Judges from office:
(1) The procedure governing the conduct of a tribunal set up to remove the Chief Justice, Deputy Chief Justice, or a judge shall be as set out in the Second Schedule.
(2) If the tribunal referred to in subsection (1) is for the removal of a judge, other than the Chief Justice, the appointing authority shall appoint the Chairperson and the members shall elect a vice-Chairperson of the tribunal from amongst their number.
(3) The Chairperson and Vice-Chairperson appointed for purposes of removal of a Chief Justice or Deputy Chief Justice or elected under subsection (2) shall be persons of the opposite gender.
(4) The appointing authority may appoint a counsel to assist the tribunal.
Once again, the platform is prepared for the dismissal of another judge, and the lineup has been announced. The most recent judge to be recommended for removal by a Tribunal was Justice Said Chitembwe.
His situation began in 2021 under the Jubilee Administration, and the Tribunal concluded its proceedings, advising his dismissal under the Kenya Kwanza administration.
DP Gachagua is responsible for carrying out the necessary steps and submitting a petition to the JSC, as mandated by the constitution. Otherwise, the numerous allegations made by politicians against the Judiciary will continue to lack supporting evidence and remain baseless.
The Process Of Removal Of A Judge From Office
