Ten key questions that will decide Supreme Court judges' fate in JSC case
One of the key issues raised is whether the JSC has oversight authority over the Supreme Court.
Ten critical questions, including whether the Judicial Service Commission (JSC) has the authority to oversee the Supreme Court, whether judges can face collective disciplinary action instead of individual accountability, and whether a judge can be removed over a ruling they were not involved in, are among key legal issues the High Court will determine in an ongoing battle between Supreme Court judges and the JSC over their proposed removal from office.
A review of the nine petitions filed at the High Court in Milimani, Nairobi and Narok by the judges and a petitioner, reveals that these ten fundamental questions could either nullify or uphold the disciplinary proceedings.
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The petitions were submitted through eight different law firms.
One of the key issues raised is whether the JSC has oversight authority over the Supreme Court. Chief Justice Koome argues that the Supreme Court, not the JSC, holds ultimate power in matters concerning the removal of judges.
"Indeed, it is the Supreme Court which has ultimate authority over the JSC on matters of removal of judges of superior courts from office. The Constitution does not contemplate any circumstances under which the Supreme Court can be subordinate to the JSC," Koome said.
The second question focuses on whether it was appropriate for the JSC to initiate removal proceedings against the entire seven-judge bench. The judges argue that suspending or removing all Supreme Court judges at once would create a constitutional crisis and disrupt judicial leadership.
Another issue raised is the legality of admitting complaints against the judges collectively rather than individually. The petitioners insist that the Constitution grants the JSC power to remove a 'judge' rather than 'judges' from office.
The fourth concern pertains to the JSC's decision to publicly announce the complaints against the judges before formally notifying them. The judges say a January 16, 2025 press release by the JSC informed the public about the petitions before the judges themselves were officially notified.
"This public ambush subjected the judges to trial by public opinion, damaging their dignity, integrity, and professional standing before they even had the opportunity to respond to the claims against them," Justice William Ouko said.
Justice Isaac Lenaola's petition also questions whether a Supreme Court judge can be subjected to disciplinary proceedings for a ruling in which they were not involved. His petition arises from a complaint filed by former Cabinet Minister Raphael Tuju's Dari Limited regarding a Supreme Court ruling in his financial dispute with the East African Development Bank.
Justice Lenaola, who was not on the bench that handled the matter, argues that the JSC acted improperly by requiring him to respond.
Public input
The sixth question challenges whether the JSC can use the Judicial Service (Processing of Petitions and Complaints Procedures) Regulations 2024 to process complaints before they have been formally gazetted. The petitioners argue that the JSC had invited public comments on the draft regulations as recently as December 10, 2024, and had not yet published them officially.
"The absence of clear procedural rules within the JSC for handling complaints against judges in such circumstances creates a risk of arbitrary and unfair administrative actions," Ole Esho said in his judicial review case.
The seventh issue revolves around whether the JSC's actions violate the doctrine of judicial independence. The judges argue that the disciplinary proceedings are sub-judice because the complaints under review are related to four ongoing cases before the High Court, Court of Appeal, Supreme Court, and East African Court of Justice.
"The continuation of the proceedings before the JSC poses an imminent risk of irreparable harm and infringement of the judges' rights and inflicts irreversible damage on their professional reputation and the integrity of the Judiciary," Justice Njoki Ndung'u said.
Justice Mohammed Ibrahim’s petition raises another fundamental question: whether judges can be accused of collective misconduct. He argues that judicial misconduct should be considered on an individual basis.
"The JSC petition does not in any way whatsoever particularize any grounds on which the complainant wants the judge removed from office," Justice Mohammed said.
The ninth issue concerns the JSC’s handling of bribery and corruption allegations circulating on social media. The judges accuse the JSC of failing to protect their reputation by allowing unverified accusations to persist without demanding evidence or identifying specific individuals.
"By allowing such general and unsubstantiated allegations to fly and requesting me to respond to the same, the JSC abrogated my right to a fair hearing as enshrined in Article 50 of the Constitution, which requires that I be informed of the allegations levelled against me with sufficient detail and that the evidence to be relied on in proving the said allegations be availed to me so that I can prepare a sufficient response," Deputy Chief Justice Philomena Mwilu said.
The final question concerns whether a Supreme Court judge can be removed from office based on a decision made collectively by the court. Justice Mwilu argues that Article 168 of the Constitution only grants the JSC authority to initiate the removal of a judge based on personal culpability, not collegial decisions.
The JSC has already suspended the disciplinary proceedings but has vowed to challenge the High Court’s interim orders that halted the process. The High Court's ruling on the 10 questions will be critical in determining the future of the Supreme Court judges facing removal proceedings.
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