NAIROBI, Kenya, Jun 28 – The Judicial Service Commission (JSC) now wants Supreme Court Judge Njoki Ndungu to face a special committee appointed to investigate her conduct.
In response to Justice Ndungu’s petition which is contesting the mandate of the committee to investigate her, Chief Registrar Ann Amadi says its composition is competent and will determine whether an allegation of judicial misconduct is merited or unmerited.
Asking the High Court to dismiss justice Ndungu’s petition, the CRJ insists that constitutional responsibility for determining the merits of any claim of judicial misconduct lies with the JSC and not with the court.
“The petitioner is wrong in attempting to shift the locus for determination of the merits of the particular misconduct claims, since the constitution provides that merits of any claim be determined by a tribunal to be appointed by the President with right of appeal to the Supreme Court,” she states.
Amadi says that JSC intends to give the judge an opportunity to be heard in the event that alleged claims may give rise to a recommendation for the appointment of a tribunal to investigate claims of misconduct.
According to the CRJ, it would be inappropriate for the court to delve into the substantial claims of the Supreme Court Judge as it would open up confidential proceedings of the judges of the apex court to interrogation by the court.
“The court should decline to consider substantive matters touching on the confidential minutes since this would require the court to invite the various judges of the Supreme Court to give evidence before the High Court and be cross-examined on judicial deliberations,” she states.
If that were to happen, Amadi says, it would constitute an improper violation of judicial privilege and violation of judicial independence.
Justice Ndungu is aggrieved following the decision to probe her conduct over the manner in which she handled an election petition filed by Kanu Secretary General Nick Salat in which she deliberated on the retirement age of judges.
The committee was set up on February 29, 2016 following a complaint by former LSK Chief Executive Officer Apollo Mboya.
Justice Ndung’u wants the High Court to determine the parameters through which the JSC can operate to avert any potential abuse of the JSC powers which may erode the very independence of the judiciary the JSC is mandated to protect.
According to the JSC, the said complaint did not warrant the recommendation for the formation of a tribunal by the President.
The case is due for hearing on July 11 before Judge Joseph Onguto.