Lawyers: Ombudsman overstepping its role on Judiciary summons

The move by the ombudsman to summon the Chief Justice and other Judicial Service Commission(JSC) members has aroused mixed reactions over its mandate.

This is after the Commission on Administrative Justice, on February 28 summoned CJ Martha Koome and nine other members of the JSC to answer allegations of ignorance and neglect of the constitution.

“The commission has invoked its powers under article 252 of the constitution and CAJ’s regulation to issue summons to JSC members,” stated CAJ chair Charles Dulo.

Lawyers have weighed in on the ombudsman's action, terming it an overstepping of roles.

According to Constitutional lawyer Kibe Mungai, the complaints relating to the judiciary should be directed to the Judicial Service Commission and not to the CAJ.

In an interview on KTN, Mungai noted that the roles were confusing: “One of the most important things under the Constitution is to ensure that you do not get unduly into the mandate of a fellow commission”.

Mungai added, “ Therefore one would presume that in fighting against them, without a very clear mandate, that an independent commission like the JSC is to supervise by CAJ with express power one would have some discomfort”.

The judges had also been summoned to explain why they failed to publish complaints they received and handled against Judicial Officers, judges, and other staff.

Constitutional lawyer Maxwell Miyawa, on his part, believes that the issue is more of a constitutional conflict.

“The Judicial Service Commission is a Constitutional Commission. The Commission on Administrative Justice is a statutory board. So that if one summons the other to be answerable to it, I think there is actually a serious constitutional conflict that has been raised by this issue of one commission supporting another commission,” said Miyawa.

He said the issue of the discipline of judges can not be the mandate of the CAJ.

Miyawa further questioned how some members of the public might have filed a complaint at the ombudsman's office.

“First of all, who filed these 700 complaints with the ombudsperson? You know, over the years, if somebody had a problem with the judge, you know, the Judicial Service Commission is there? We just have a judiciary ombudsperson,” he posed.

CAJ stated that it had received 700 complaints of maladministration against the judiciary since 2019.