How petition to oust top judges could raise a legal conundrum

The injunctive orders obtained by several of the Supreme Court judges against the Judicial Service Commission puts to an end, albeit temporarily, disciplinary proceedings against all the judges.

Having looked at the complaints against the judges, I have an opinion on the threshold of the complaints and capacity to send the judges home.

But that’s not my province, and I will leave the immensely capable JSC Commissioners to adjudicate the merits or otherwise of the complaints at the appropriate time.

Unsurprisingly like all things Kenyan, the conversation has been infected with its own dose of regional and ethno-politics, which must be awkward for a number of the judges who hold themselves above such “base” considerations.

I also refuse to descend to that arena and leave it to those better suited to see controversies through such lenses. Instead, I choose to focus on certain constitutional realities we need to have at the back of our minds as these proceedings progress.

• .

  Keep Reading

• 
  Supreme heat up as political egos, confusion reign against apex court
• 
  Former Chief Justice Maraga condemns attack on judges
• 
  Inside biggest drug empire: the rise and fall of Mathee wa Ngara
• 
  Drama as Havi, Ahmednasir clash with judge over orders

Assuming for purposes of argument the Commission, after conducting its hearings, is “satisfied that the petitions disclose grounds for removal”, it would recommend to the President the formation of 7 tribunals to try the 7 judges.

Under Article 168(5) of the Constitution, the President would be required, within 14 days of receipt of the JSC recommendations, to suspend the judges and form the tribunals. The Supreme Court as an institution would continue to exist but until the judges are “acquitted” by the tribunal, it would be unoperational.

Assuming the judges are found guilty by the tribunal and thereby recommended for removal, they have a right of appeal to the Supreme Court under Article 168(8). Under Article 168(9), the judges would continue in suspension and would not be dismissed and new judges appointed until their right of appeal is exhausted.

Remember, however that there are no judges to sit in court and hear the intended appeal. Talk of constitutional conundrum! In the meantime, we will be hurtling fast toward the presidential election in 2027.

Under Article 140, all questions relating to validity of a presidential election can only be determined by the Supreme Court. We will however have no judges in the Supreme Court.

Fortunately, the courts have, in previous cases, provided a saving grace in these circumstances, however contentious the saving grace may appear. The Supreme Court has in previous litigation indicated that if an election petition is not determined within the period set by the Constitution, the decision of the IEBC stands. But there is another constitutional conundrum.

Under Article 141, the swearing in of the President and his Deputy “shall be in public before the Chief Justice or in their absence the Deputy Chief Justice” both of whom would be in suspension! This latter requirement may be considered a routine administrative act which can be handled by a judge gazetted for the purpose, but in litigious Kenya, you can be sure someone will rush to court to challenge the legality of the President if he or she is sworn in contrary to what appears mandatory provisions of Article 141.

In normal circumstances when such issues for which the Constitution has no answer arise, they have been handled by the Supreme Court in its advisory capacity under Article 163(6). But in the Supreme Court judges absence, these matters would end up in the High Court and Court of Appeal.

Unfortunately, the nature of the jurisdiction of these courts does not lend itself very well to resolution of such matters and would add further instability to the situation. These are not pedantics. They raise serious issues that require consideration by all parties involved in these weighty matters.

Conspiracy theorists will argue that the crisis is exactly what is intended, but I am more gracious in judging people’s intentions.

I want to believe those seeking removal of the judges are doing so in good faith and for the sake of what they believe will be a better Kenya.

But let us remember that Kenya is still a young and very fragile constitutional democracy. We must therefore be alert to all possible ramifications of any actions we take, even as we seek to be faithful to the letter and spirit of the Constitution.

-The writer is an advocate of the High Court of Kenya