The decision of the Judicial Service Commission (JSC) to hear three disciplinary cases against High Court Judge Juma Chitembwe has brought to the fore again the lack of regulations on removing a judge from office.
The hearings over alleged gross misconduct and corruption are scheduled to start on Tuesday, amid a fresh court case Justice Chitembwe filed challenging the move.
It is the fifth time the JSC is being put on the spot over the legal vacuum in its processes, in that the commission has never gazetted rules defining its procedures for handling such petitions.
Justice Chitembwe says in his case that since the enactment of the Judicial Service Act (2011), JSC has not formulated procedural regulations for determining petitions seeking to remove judges from office.
He argues that all JSC decisions on the petitions against him and the proceedings are null and void because they were made without any rules of procedure or practice.
“JSC has on several occasions stated that it is not a court of law and is not bound by rules of procedures and will determine how to conduct its proceedings. As a result of this, there is no uniform format for conducting ... proceedings which is against the rules of natural justice,” the judge says.
The JSC has been involved in several cases where lack of rules for removing judges under Article 168 of the Constitution has been raised and rulings issued on the importance of having such regulations.
Among the judges who faced such cases were Deputy Chief Justice Philomena Mwilu, Supreme Court Judge Njoki Ndung'u, retired Supreme Court judge Jackton Ojwang’ and retired judge Joseph Mbalu Mutava.
In May last year, the High Court declined a request by Justice Ndung'u to compel the JSC to create the regulations after the commission informed the court that the proposed regulations were stuck in the National Assembly.
The JSC had found her guilty of misconduct and she challenged the decision, arguing that the alleged wrongdoing did not meet the threshold for appointing a tribunal to remove her.
She urged the court to order that the JSC gazette regulations defining the precise procedures for petitions seeking to remove judges under Section 47 of the Judicial Service Act.
The judge argued that the JSC was to blame for the prevailing uncertainty.
But in a May 14, 2020 judgment, Justice Weldon Korir said the court could not compel the JSC to do something that is in the hands of another State organ, in this case, the National Assembly.
"I find that Justice Ndung’u has a point that the JSC, as empowered by Section 47(2)(c) of the Judicial Service Act, should indeed make regulations specifically to provide for all ‘preliminary procedures for making any recommendations required to be made under the Constitution’," he said.
“Such regulations will ensure that judges facing allegations that may lead to removal from office can clearly predict the procedure to be followed.
He added: "The lack of a clear procedure is not a hallmark of a fair administrative process. A person being taken through an administrative action should be able to tell beforehand what to expect of the process. The JSC should set an exemplary record on fair administrative action."
Last month, in a case on a petition seeking to remove DCJ Mwilu, a three-judge bench observed that the importance of rules on administrative action that may result in adverse outcomes for the target cannot be gainsaid.
But the judges said the law remains that lack of regulations is not sufficient to stop the JSC from executing its constitutional mandate as long as the JSC complies with the Constitution.
In her petition, the DCJ Mwilu had said that the lack of the regulations renders the JSC's actions and decisions "oppressive, capricious, whimsical and (are) a violation of rights and fundamental freedoms".
Lack of rules, she argued, results in unpredictable and inconsistent handling of complaints against judges.
She relied on the decision of a tribunal that investigated Justice Ojwang’ for her assertion that the JSC’s failure to make rules and subjecting a judge to a process without rules violate articles 47 and 50 of the Constitution.
In ruling that the petition to remove Justice Ojwang’ from office had not met the constitutional threshold, the tribunal questioned what rules the JSC applied in reaching its decisions.
The issue of rules was also addressed in Justice Mutava's case.
The court ruled that without any constitutional or statutory procedures, the JSC has administrative discretion to adopt any fair procedures appropriate for its task.