Tuesday, February 27, 2018

What it isn't

The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission. -- Article 168 (2)
A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground. -- Article 251 (2)
An advocate of the High Court of Kenya seeks the removal of members of the Judicial Service Commission in a petition he has made to the National Assembly under Article 251 of the Constitution. many lawyers have responded y accusing the advocate of being a shill for the Jubilation in its assault on the Judiciary. They argue that the National Assembly is the wrong forum for seeking the removal of judges from office. They conveniently ignore that the petitioner seeks the removal of not just the judges sitting in the Judicial Service Commission, but also magistrates and the representatives of the Law Society of Kenya.

The petitioner does not seek the removal of judges [of the superior courts] from judicial office; if he did, then the National Assembly would be the wrong forum. He would have had to petition the Judicial Service Commission itself under Article 168. But if that was his intention, then his desire to remove the representatives of the Law Society would not be determined under Article 168, hence his decision to approach the National Assembly.

The petitioner, though, has not considered the full implications of his petition. If he succeeds, the outcome will be that the judges and magistrate will only have lost their seats on the commission but will continue to hold office as judges or magistrates. Thereafter, the commission will have lost its quorum and, therefore, will be unable to sit to hear any petition to remove a judge of a superior court, including the removal of the Chief Justice, the Deputy Chief Justice, or the removal of a magistrate, from office. These judicial officers will continue to hold office regardless of their fitness to hold office.

It remains unknown what the petitioner intended with his petition to the National Assembly or whether he is even familiar with the potential constitutional problems a successful petition will engender. This is a hallmark of many Jubilation "experts". Isn't it time the Jubilation took time off to go back to school?

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