CJ Maraga, 4 other judges get 14 days to respond to petitions

March 20, 2019 3:26 pm
The petition will be relayed to President Uhuru Kenyatta during the course of the day who will then appoint a tribunal within fourteen days/CFM NEWS

, NAIROBI, Kenya, Mar 20 – Five Supreme Court judges among them Chief Justice David Maraga will have two weeks to respond to petitions seeking their removal from office over alleged gross violation of the Constitution.

The Judicial Service Commission (JSC), following a plenary session on Tuesday, directed Maraga, Justices Mohammed Ibrahim, Jackton Ojwang, Smokin Wanjala, and Njoki Ndung’u to be served with the petitions filed by Yussuf Dimbil, and Mohammed Mahamud Sheikh.

In a media briefing on Wednesday, Maraga who also chairs the JSC said the Commission was committed to promoting independence and accountability of the judiciary and the top court that has lately been dogged with allegations of corruption.

“The Commission considered a petition filed by Mohamed Mohamud Sheikh against four judges of the Supreme Court namely Justice Mohammed Ibrahim, Justice Prof Jackton Ojwang, Justice Dr Smokin Wanjala and Lady Justice Njoki Ndung’u for alleged gross misconduct, misbehaviour and incompetence, breach of the Constitution and Oath of Office,” CJ Maraga said while announcing the JSC’s decision.

According to the Commission, Maraga will respond to a similar petition against him premised on gross violation of the Constitution.

The JSC also recommended the formation of a tribunal to probe the conduct of Justice Jackton Ojwang after admitting a petition seeking his removal over misconduct, impropriety and conflict of interest.

The petition was due to be relayed to President Uhuru Kenyatta on Wednesday who will then appoint a tribunal within 14 days.

“The petition – filed by Nelson Oduor Onyango and eight others – detailed instances which the petitioners believed constituted grounds of misconduct, impropriety, conflict of interest and breach of judicial code of conduct on the part of the Judge,” Maraga stated.

While admitting the petition, the JSC noted Justice Ojwang’s refusal to attend a hearing where he would have been accorded an opportunity to defend himself.

The complainants singled out Justice Ojwang’s involvement in a miscellaneous application 49 of 2014 between the Awendo Town Council and the petitioners “despite being conflicted and being closely associated with the County Government of Migori and the Governor Okoth Obado.”

“The full Commission deliberated on the same (committee report) at great length and found that the petition had disclosed sufficient ground to warrant a recommendation to the President to set up a Tribunal for the removal of the Justice Prof Jackton B. Ojwang and accordingly adopted it.”

JSC’s recommendation sets the stage for the suspension of Justice Ojwang under Article 168 (5) of the Constitution which requires the President to form the tribunal within 14 days.

“The President shall, within 14 days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the Judicial Service Commission,” the Article stipulates.

Under Article 168 of the Constitution, judges of superior courts (Supreme Court, Court of Appeal, and High Court) can be removed from office on grounds of mental or physical incapacity, breach of prescribed code of conduct, bankruptcy, incompetence, and gross misconduct.

Article 168 (5) empowers the President to, upon receiving a petition from JSC , appoint a six-member tribunal comprising of among others an advocate and two persons with experience in public affairs.

“The Judicial Service Commission shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President,” Article 168 (4) reads.

Judges suspended under Article 168 (5) are entitled to half the remuneration benefits payable to them pending determination of their fate by tribunal.

“Despite Article 160 (4), the remuneration and benefits payable to a judge who is suspended from office under clause (5) shall be adjusted to one half until such time as the judge is removed from, or reinstated in, office,” Article 168 (6) provides.

Meanwhile nine of 17 petitions filed against Court of Appeal and High Court judges were admitted following deliberations JSC.

CJ Maraga told the press on Wednesday the Commission had found there was merit in the petitions.

“Upon deliberation, the JSC admitted nine of them for hearing and found no merit in the other eight and accordingly dismissed them,” he said.

JSC comprises of a representative each from the Court of Appeal, High Court, Public Service Commission two from the Law Society of Kenya, and two persons of either gender appointed the President with the approval of the National Assembly to represent the public.

Other members are Deputy Chief Justice Philomena Mwilu, elected by colleague Supreme Court judges to represent the top court, and Attorney General Kihara Kariuki.

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