Legal Lacunas in the Process of a Judge’s Removal

The process of removal of a judge from office is to be found under Article 168 of the Constitution of Kenya. According to Article 168(2) the removal of a judge may be initiated by the Judicial Service Commission suo-moto or on the petition of a person to the J.S.C. thus JSC is the genesis for the process. Article 168(10) further provides that parliament shall initiate legislation that provides for the procedure of a tribunal appointed under Article 168.

The Constitution under Article 168 (3), 168(4) and 168(5) gives the procedure of the process of a judge’s removal when a person presents a petition to the JSC. It is however mute when it comes to the procedure when the J.S.C is acting suo-moto. Thus the next likely search destination for this process is none other than the legislation that was passed owing to Article 168(10) of the Constitution, is the Judicial Service Act.

Section 31 of the J.S.A steers us to the second schedule of the Act where it is indicated that the process of removal of a judge is to be found. The 2^nd schedule gives us the powers of a tribunal appointed by the president inter alia but does not mention the process of removal of a judge when the JSC is acting suo-moto. This is the first legal lacuna.

In most, if not all legal proceedings, whether one is a complainant, applicant or petitioner, they are permitted to withdraw their complaint, application or petition before fruition.

1.      In this instance of the JSC is it possible for a petitioner to withdraw his petition after a tribunal has already been formed?

2.      What is the process of withdrawal?

3.      What can a tribunal do when a petition is withdrawn?

These are the other legal lacuna’s that exist within that process. The Constitution and the Judicial Service Act are silent on these matters.

Suo-Moto power in practice and in the absence of clear cut regulations? In the case of Joseph Mbalu Mutava v Attorney General & another [2014] eKLR the JSC received numerous complaints about how the judges had handled 3 cases. The commission formed a committee and delegated its functions under Section 14 of the Act. The committee investigated and submitted its report to the JSC that the threshold had been met. What is the threshold? The JSC in turn submitted the petition to the president. Is this the appropriate channel? though reasonable?

The law needs to be specific, lex specialis. We would thus seek a constitutional interpretation of Article 168(2) from the High Court.