Judiciary is not JSC and neither is JSC judiciary. JSC is an independent commission like any other PSC, IEBC, lands etc. Parliamentary service commission is the equivalent of JSC and it is not the legislature. Parliament received formal petition against some JSC members. Parliament found the petition good enough to warrant recommendation of tribunal for their removal. Nowhere has parliament overstepped their mandate. On contrary JSC is trying to hide behind Judiciary. President had no option except to form a tribunal. The President was not being requested to form a tribunal, He was been ordered to do so as soon as he receives a petition from speaker of national assembly. The word is SHALL (MUST).
I’m wondering why folks think JSC is judiciary. That’s the reason Mutunga and Kalpana Rawal are not in that list is because they are part of judiciary although Mutunga also serves in JSC. It is this mistaken belief they are judiciary that gives JSC a big head. The Judiciary has to be like Caesar’s wife; beyond reproach and beyond suspicion. That start in having a JSC with ONLY folks of outstanding character and integrity as rightly ruled by Baraza tribunal.
The President followed the Law. Parliament followed the Law. The high court judge overstepped it. Nobody can order parliament on what to do or what not. Parliament is people representatives. Judges are allowed only to question output of parliament (acts) and not the input. If the president wanted to intervene, he should have lobbied MPS in parliament but the ball right now is headed to the goal and only a timely court order can stop the ball. Unless President Uhuru had received a court order barring him from forming a tribunal, he would be flouting the constitution, a serious offence that can led to his impeachment.
The 3 arms of government allow President to influence parliament and Judiciary, this is because one the president is the political leader of majority in parliament and secondly AG sits on parliament and JSC. In short the President is the overall head of the 3 arms of government since his mandate is directly from the people.
Article 94(2) Parliament manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty.
125. (1) Either House of Parliament, and any of its committees, has power to summon any person to appear before it for the purpose of
giving evidence or providing information.
(2) For the purposes of clause (1), a House of Parliament and any of its committees has the same powers as the High Court—
(a) to enforce the attendance of witnesses and examine them on oath, affirmation or otherwise;
(b) to compel the production of documents; and
(c) to issue a commission or request to examine witnesses abroad.
251. (1) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for—
(a) serious violation of this Constitution or any other law, including a contravention of Chapter Six;
(b) gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise;
(c) physical or mental incapacity to perform the functions of office;
(d) incompetence; or
(e) bankruptcy.
(2) A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground
(3) The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President.
(4) On receiving a petition under clause (3), the President—
(a) may suspend the member or office holder pending the outcome of the complaint; and
(b) shall appoint a tribunal in accordance with clause (5).
(5) The tribunal shall consist of—
(a) a person who holds or has held office as a judge of a superior court, who shall be the chairperson;
(b) at least two persons who are qualified to be appointed as High Court judges; and
(c) one other member who is qualified to assess the facts in respect of the particular ground for removal.
254. (1) As soon as practicable after the end of each financial year, each commission, and each holder of an independent office, shall
submit a report to the President and to Parliament.
(2) At any time, the President, the National Assembly or the Senate may require a commission or holder of an independent office to submit a report on a particular issue.
So the Judiciary is not under threat the tribunal has been setup as prescribed by law to examine serious allegations against the JSC. I think the JSC will be vindicated and if any of them is found to have contravened the law then the new constitution will have worked as intended.
Months of that constraining ‘stolen elections’ mantra have destroyed our capacity to see any issues without bringing in the same old arguments. Are cord the only people that have not been following the shenanigans at the JSC: secret meetings, street-fighting, leaked e-mails, exorbitant remuneration, questionable procurement, etc?
There is nothing here that requires Cord’s alarmist and opportunistic interference. All the cogs of our system are spinning as they should. If the JSC can ‘purge itself’ the way it did when it ejected Shollei, it ought to be able to withstand scrutiny from other organs that serve as checks-and-balances. It would be a very scary situation is the JSC were to be insulated from any criticism or correction.
At heart of is that someone (a Kenyan) formally PETITIONED parliament to form a tribunal as required in the CONSTITUTION. Parliament is not acting out of the blues. Parliament received petitions against some of JSC members; then it would be on their interest to defend themselves; automatically parliament had to make judgement call on those petitions, there was prima facia evidence of impropriety or abuse of law and they petition the President to form a tribunal. The tribunal will summon them and if the accusations are strong, the named JSC members go home. The law say one you or me can send an email or even SMS to parliament alleging that one or two JSC members have flouted the law; parliament has to act on that; if there is prima facia evidence; they will ask the President to form a tribunal.
People only heard of separation of powers, but they missed the afternoon lessons on CHECKS AND BALANCES. Judiciary is checked by parliament and the executive. Judiciary checks parliament and the executive. Executive does the same. Separation of power doesn’t mean you can do anything and everything. EVERYONE HAS TO BE ANSWERABLE TO SOMEONE ONE. You cannot have on arm of government answerable to NOBODY. Parliament is answerable to wananchi every 5 years and they can be RECALLED any time after 2 years. President is answerable to parliament and can be IMPEACHED anytime. JSC cannot say they are not answerable to NOBODY. Separation is as far as Judges doing their thing; writing judgements (parliament cannot ever summon a judge to explain why he ruled this way–that is JSC role). When they sit either as lawyers or laymen or judges in JSC and engage in procurement of toilet papers, then they come under purview of parliament and public. Judiciary can also not summon parliament to explain why they made this or that law as long as it’s constitutional.
Judiciary is less powerful than President and Parliament because those are really employees. Their mandate is NOT DIRECT which is why if President and Parliament summon them, they ought to honour those summons. They only draw the red line if somebody dictated how they should write Judgment. They cannot move the red line when it comes to administration or budgeting issues.
The Judiciary is the only arm of government where the best practise worldwide is to hold them at very HIGHEST of STANDARDS. They are judges. They even flout your “god” command not to judges others. Shollei might be an emotional freak; but she was selected by the same JSC as their CEO for 2yrs; is their secretary; and she has made serious allegations. Shollei was judiciary CEO; there is no way any sane parliament can ignore her ALLEGATIONS. Nancy Baraza was hanged for less because all JSC and Judges must be folks of truly outstanding character and integrity. As cleans as possibly can be…it should be blasphemous to even imagine those guys are somehow corrupt.
These are BASIC class six civic educations. But apparently majority missed their lessons.
Judges cannot even get drunk. They daily send thousands of drunks to jail and thus the saying as sober as the judge. Judges are supposed to be like our priest. Pretty much judiciary and the church derive its power and authority from that. They can guide, correct, admonish and punish the rest of us because we believe they deserve those elevated positions. We do not elect them; we select the best of men in character and in intelligence to become the paragon of justices, sobriety, fairness and morality.
JSC just like 9 independent commissions are under parliament. If on their own motion (like they’ve done) or thro’ public petition; parliament think JSC are misusing their powers; they step in; and if need be; recommend removal of any or all the commissioners. Parliament cannot remove judges. But they can remove JSC members. In the case of Nancy Baraza, what parliament would have done was to remove her as JSC member but she would have remained as a Supreme Court Judge.
JSC ran the court. They hire the judges, they fire judges. Now if somebody WITHIN the JUDICIARY feel aggrieved by it very TOP organ; you’re telling them to go to JUNIOR organ within the judiciary and get justices. Which judge will want JSC on his wrath? NO junior judge will overrule JSC decision and this is where parliament comes in. JSC boss is the parliament because JSC is NOT the judiciary. JSC is an independent commission established not by the CHAPTER ON JUDICIARY but by the chapter on Independent and Constitutional commission. It even has 2 raias who do not understand law.
If somebody within parliament or executive feel aggrieved they ran to the Judiciary. If somebody within judiciary feels aggrieved, you’re telling them to run back to judiciary to some junior high court judged to overrule his bosses? Parliament is the only organ that can check the obvious excess of JSC which is why the LAW allows parliament to receive any public petition on any JSC member and petition the president to remove ANY or ALL JSC members. JSC on the other hand are allowed to receive petition to remove any judge. Parliament doesn’t do that. If today you have a fight with Mutunga, you cannot possibly get justice from judiciary. The same with if you had beef with president Uhuru, you cannot ran to Siaya DC to file a complaint.
MPs are the custodian of public interest and JSC has to know they cannot run judiciary the way they want so is parliament and the executive. Everyone can interfere with everyone. It called checks and balance. Judiciary checks parliament. When they go rogue; Judiciary rein on them. Parliament also checks judiciary. Executive also does that. Parliament is especially powerful because they represent the people. They can pretty much change the constitution, fire the president or change any law including JSC act unless that part that require a referendum. They approved JSC members and they can fire the whole of JSC.
Parliament has oversight over JSC (judiciary) and executive. Parliament cannot summon a judge to explain why they rule this way or that. But parliament has oversight on matters budgeting or administrative. They can summon JSC anytime. When Judiciary recently went with a budget to buy a plane, its parliament which slashed it off.
If you have a problem talk to your MP they are the ones coming up with this.
