Monday, September 18, 2017

How politically powerful is the Chief Justice?

The grounds on which the Chief Justice may be removed from office are: the inability to perform the functions of office arising from mental or physical incapacity; a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence; or gross misconduct or behaviour. 

The Chief Justice's removal my be initiated by the Judicial Service Commission (acting on its own motion) or by a petition by any person to the JSC. A petition shall be in writing. If the JSC is satisfied that there are sufficient grounds for the removal of the Chief Justice, it shall recommend to the President the appointment of a tribunal to investigate the conduct of the Chief Justice. (Article 168). The procedure by which the Chief Justice may be removed from office is set out in the Second Schedule to the Judicial Service Act, 2011.

It is curious, though, that the provisions of Article 168 and the Judicial Service Act are silent about what happens to a petition if the the petitioner wishes to withdraw the petition. It is presumed that he who alleges is also free to retract his allegations. But what if the allegations are true and the retraction is because of undue influence or pressure from third parties? 

For instance, what we have seen of Ngunjiri Wambugu's petition for the removal of the Chief Justice, which he has since "withdrawn", made many incredible-sounding allegations such as the manner in which the Chief Justice has allowed and facilitated the infiltration of the Judiciary my members of civil society organisations who may or may not be acting at the behest of hostile powers. Just because Mr Wambugu's allegations fit in with the heightened hyperbole of the Jubilation doesn't necessarily make them untrue. What happens to the allegations? Does the JSC ignore the allegations simply because Mr Wambugu has "withdrawn" them? Given the very public pressure Mr Wambugu has faced to withdraw -- no less than from the President and the majority Leader of Mr Wambugu's parliamentary party group -- shouldn't the JSC take into account that Mr Wambugu has been forced to withdraw his petition?

We don't pay much attention to the things we do for political mileage. Mr Wambugu is no different from us; looking at the content of his political ruminations between 2012/2013 and 2017, there are glaring differences in the personas he has adopted. These personas, though, share something in common: he has never had to consider that there are legal and constitutional implications of his many utterances and simply because he has never been challenged about them doesn't minimise the legal risks he has taken on in the past. 

Now that he is an elected representative, Mr Wambugu also takes on unknown and unquantifiable political risks. His petition, whether the JSC considers it or not, is now part of the public record and it must be put to rest regardless of Mr Wambugu's withdrawal, if only to settle once and for all the health of the Judiciary and its place and status in Government as well as its place in the political firmament. Between the decisions of the Supreme Court in presidential petitions in 2013 and 2017, a lot has been alleged about the Court and its members, especially both the Chief Justice and his predecessor. Much of what is claimed about the men is political. Mr Wambugu reminded us that the Supreme Court and its Judges are also political actors. It is time we settled the extent of their political power.

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