Powers of the Tribunal Responsible for Removing a Judge

 Issue: What happens when a written petition is withdrawn whereas a tribunal had already been formed to hear the matter?

The process of removal of a judge is either initiated by the J.S.C suo-moto or the J.S.C is moved by way of a petition. The J.S.C considers it and if it has merit then it presents it to a president who in turn appoints a tribunal to hear the matter.

If it happens that the petitioner withdraws the petition at this stage, what happens?

According to the Constitution of Kenya under Article 168(7)(a) the tribunal is responsible for the regulation of its own proceedings. It must inquire into the matter fairly and expeditiously and then submit binding recommendations to the president[1].

The Judicial Service Act sheds more light. According to the 2^nd Schedule Section 7 the tribunal is vested with all the powers necessary and incidental to carrying out its mandate under the Constitution. These powers include;

1.      2^nd Schedule Sec 6(3) Power to cure or waive an illegality in the proceedings

2.      2^nd Schedule Sec 6(2) Prevent a miscarriage of justice

3.      2^nd Schedule Sec 8(1) Power to summon judges through hearing notices

4.      2^nd Schedule Sec 12(1) Power to summon witnesses

5.      2^nd Schedule Sec 13 Power to overstep the strict rules of evidence subject to natural justice and relevancy

6.      2^nd Schedule Sec 16(2) Power to recall any already examined witnesses

7.      2^nd Schedule Sec 24 Chairman has the power to issue practice directions

8.      2^nd Schedule Sec 25 Power to extend the strict timelines if sufficient cause is shown as long as it is just and expedient

9.      2^nd Schedule Sec 27(1) power to regulate its own procedure

The situation becomes tricky because if the petitioner withdraws the petition before the tribunal hears the matter and the tribunal decide to proceed with the matter, then who are going to be the witnesses, how will the accused judge cross examine his accuser?  This will prima facie be a violation of the rules of natural justice.  One must face their accuser.

The powers of the tribunal do not expressly say that it has the powers to do. As such if a petition is withdrawn before fruition then the tribunal has no option but to drop the matter and make a recommendation to the president to exonerate the accused.

---

[1] Art 168(7)(b)