The High Court of Kenya has ruled that the Judicial Service Commission (JSC) must conduct a preliminary assessment of complaints against judges before requiring them to respond as part of a removal process. This decision was made by a three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi, and Bahati Mwamuye. The court's ruling came after petitions were filed challenging the manner in which the JSC handled complaints seeking the removal of all seven Supreme Court judges.
The consolidated petitions arose from complaints lodged before the commission, including one filed by former Law Society of Kenya President Nelson Havi concerning the judges. The judges had argued that before subjecting a judge to the grave process of removal, the JSC was required to determine whether a complaint disclosed any of the grounds for removal set out under Article 168(1)(a-e) of the Constitution. They also argued that the complaints should provide enough details and establish a sufficient basis to warrant the removal process.
The JSC, however, maintained that it had commenced processing the complaints. According to the commission, Havi filed a petition seeking the removal of the seven Supreme Court judges, which was tabled before the JSC and subsequently served on Chief Justice Martha Koome for a response. The commission said the Chief Justice was given 21 days to respond, with the stipulated period ending without a response. The JSC further told the court that several other petitions had been filed and were subjected to a similar process.
Delivering the judgment on Friday, Justice Mugambi found that complaints against judges must undergo vetting before the removal process advances. He stated that unvetted complaints could undermine judicial independence, erode public trust and the rule of law, while also affecting a judge's right to fair administrative action. The court held that a preliminary assessment constitutes an important component of constitutional procedural fairness under Article 47, serving as a filter before complaints proceed further.
The court found that requiring the judges to respond before undertaking the preliminary screening rendered the process procedurally defective. Justice Mugambi also noted that although the JSC said it had held a meeting to consider the complaints, no minutes, deliberations, or resolutions were presented to the court. The court nevertheless affirmed that the JSC retains the constitutional mandate to receive and consider complaints against judges under Article 168.
The court rejected the JSC's argument that the judges' petitions were premature, finding that the commission had already commenced processing the complaints and issued notices requiring responses. The court also rejected the proposition that Article 168 places the JSC's exercise of its mandate beyond judicial review. Justice Mugambi said the High Court retains jurisdiction to determine whether the JSC, while exercising its mandate, has acted within the Constitution, the Judicial Service Act, and applicable principles of fair administrative action.
The ruling sets a significant precedent for the JSC's handling of complaints against judges in Kenya. The court's decision emphasizes the importance of preliminary vetting of complaints to ensure that the process of removing judges is fair and in line with the Constitution. The JSC is now required to conduct a thorough initial assessment of complaints before proceeding with the removal process, ensuring that the rights of judges and the integrity of the judicial system are protected.
Key points
- The JSC must conduct a preliminary assessment of complaints against judges before requiring them to respond as part of a removal process.
- The High Court retains jurisdiction to determine whether the JSC has acted within the Constitution, the Judicial Service Act, and applicable principles of fair administrative action.
- Preliminary vetting of complaints is essential to ensure that the process of removing judges is fair and in line with the Constitution.
