FIDA sues JSC over bid to oust Supreme Court judges, citing constitutional crisis

FIDA-Kenya, a women's rights group, has taken the Judicial Service Commission (JSC) to court over its handling of petitions seeking the removal of all Supreme Court Judges, calling the move unconstitutional and dangerously destabilising.

FIDA Kenya, in a petition filed at the Milimani High Court, is challenging the legality and constitutionality of the process initiated by the JSC, warning that it could result in the unprecedented removal of more than two, or potentially all seven judges of the Supreme Court of Kenya.

The organisation argues that the process is unconstitutional, unlawful and procedurally flawed, and if allowed to proceed, it would paralyse the operations of the Supreme Court, violate constitutional rights, and severely undermine the rule of law.

FIDA says the move threatens key constitutional principles, including judicial independence, the right to fair administrative action, access to justice, and the right to a fair hearing.

“Should the 1st Respondent’s process result in the simultaneous removal of all Supreme Court judges, it would create an unprecedented legal and constitutional vacuum. The Supreme Court would be rendered incapable of performing its essential constitutional functions such as interpreting the Constitution, resolving disputes of national importance, and delivering final adjudication on constitutional and legal issues,” reads the petition.

Prolonged judicial crisis

FIDA further warns of an imminent risk of a prolonged judicial crisis stemming from the potential indefinite suspension of the Supreme Court. Such a crisis, it argues, would leave major constitutional and legal questions unresolved, deny the public access to justice, and deprive individuals and institutions of the right to a fair hearing and legal finality.

In addition to rendering the apex court inoperative, the petition notes that the JSC’s actions are likely to spark a chain of constitutional crises.

FIDA cautions that this could erode public trust in the judiciary, weaken judicial independence, and create a perception of external interference in the judicial process, all of which would significantly undermine Kenya’s democratic governance.

“It would also prevent the resolution of critical legal and constitutional issues, leave matters of public concern unresolved, and create legal uncertainty for citizens, businesses, and state institutions,” the petition adds.

Inconsistent rulings

The organisation further argues that the process would obstruct the development of consistent judicial precedent and jurisprudence, potentially leading to unpredictable and inconsistent rulings by lower courts, and hampering the evolution of Kenya’s legal framework.

FIDA is therefore asking the High Court to declare that the process initiated by the JSC, involving the simultaneous consideration of petitions for the removal of more than two or all Supreme Court Judges, is unconstitutional, null, and void.

The organisation is also challenging the JSC’s decision to initiate what it describes as an omnibus petition against all seven judges, arguing that it is similarly unconstitutional and invalid.

FIDA claims that the JSC acted ultra vires and exceeded its legal mandate when it unlawfully excluded the Chief Justice from convening and participating in the meeting during which the decision, communicated through letters dated 27 January 2025, was made.

Other Topics To Read

• Headlines
• National
• Supreme Court
• Judicial Service Commission
• JSC
• Supreme Court judges
• Fida-Kenya
• FIDA sues JSC over bid to oust Supreme Court judges
• citing constitutional crisis

Unconstitutional and unlawful

It also contests the exclusion of the Supreme Court’s representative from that same meeting, describing the move as both unconstitutional and unlawful.

The petition states that the Constitution does not contemplate or permit the simultaneous removal of more than two Supreme Court judges, and particularly forbids the concurrent removal of both the Chief Justice and the Deputy Chief Justice, making any such process unconstitutional.

Further, FIDA argues that the Judicial Service Commission cannot be properly constituted without the Chief Justice, the Supreme Court’s representative, or any other members as provided under Article 171(2) of the Constitution.

The organisation wants the court to halt the JSC’s process in its entirety, citing threats to judicial stability, the independence of the courts, and the constitutional rights of both judges and the Kenyan public.