A member of the citizens’ voluntary group opposed to the Building Bridges Initiative (BBI) wants three Supreme Court judges to recuse themselves from the case.
Mr Isaac Aluochier wants Justices Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u to stay away, a move that will cause a technical hitch in the hearing and determination of the four appeals.
Article 163 of the Constitution provides that the apex court is properly constituted for proceedings if the bench is composed of five judges. Should the three leave, it will be left with only four, short of the quorum.
Mr Aluochier claims the trio could be biased against him because he had initially sought their removal from office over alleged gross misconduct.
In an application filed yesterday, Mr Aluochier says in April 2016 he petitioned the Judicial Service Commission (JSC) for the removal of six Supreme Court judges.
Other than the trio, the others were Willy Mutunga (then-Chief Justice), Philip Tunoi and Jacktone Ojwang’. The JSC has never responded to his petition despite the High Court asking it to do so.
“In the circumstances, the petition for removal of the three judges still at this Court, out of the six originally sought to be removed, remains outstanding. It is on account of this outstanding matter that the Applicant is not certain as to the impartiality of the three judges in resolving a dispute in which the Applicant is one of the substantive parties,” states his application.
To ensure “the high moral character and integrity of the Supreme Court”, all judges sitting on the bench resolving the BBI dispute should have no circumstances around them that question their impartiality, he says.
Although he admits his application shall stall the BBI case, Mr Aluochier says the JSC is to blame because of its non-responsiveness to his petition.
He, however, states that since the BBI case is one that is of great public interest and should be heard and determined expeditiously, the JSC can subject his petition to alternative forms of dispute resolution.
He observes that by its non-responsiveness over the last five years, the JSC has “woefully fallen short of its constitutional objects in the manner it has handled the petition”.
In his view, the doctrine of necessity (for the three judges to participate in the BBI case) and the duty for the court to sit legally is not superior to the right to fair hearing.
“The Applicant’s right to fair hearing pursuant to Article 50(1) of the Constitution is non-derogable. The Bench that is constituted to hear and determine the instant Petitions of Appeal must be composed of independent and impartial judges,” says Mr Aluochier.
The appeals will be mentioned on October 27 before the Supreme Court deputy registrar to confirm whether all parties have filed their documents.
They were filed by the Attorney-General, the Independent Electoral and Boundaries Commission (IEBC) and lawyers Omoke Morara and Charles Kanjama.
The dispute moved to the top court after a seven-judge bench of the Court of Appeal ruled that the Constitution of Kenya Amendment Bill 2020 is null and void.