The Judicial Service Commission (JSC) has released detailed regulations that clearly explain how judges can be removed from office. These rules provide a structured approach to ensure accountability in the judiciary while protecting its independence.
A draft of the regulations, seen by Newshub.co.ke, outlines procedures that can be initiated both by the Commission itself and by members of the public.
This move aims to make the process of removing judges more transparent and accessible, giving ordinary Kenyans a voice in matters of judicial accountability.
The new regulations are established under Sections 47(1) and 47(2)(c) of the Judicial Service Act and apply to superior court judges. They are designed to implement Article 168 of the Constitution, which governs the removal of judges.
The framework provides two main paths: one where the JSC can initiate removal, and another allowing any member of the public to submit a petition.
To handle these cases, a panel of at least five JSC members, including a chairperson, will be formed. This panel has the power to summon witnesses, collect evidence, and request relevant documents, ensuring that investigations are thorough and fair.
Commission-Initiated Removal
If the JSC receives credible information suggesting that a judge may be unfit for office due to incapacity, incompetence, gross misconduct, breach of judicial ethics, or bankruptcy, it will first conduct a preliminary assessment to establish the facts.
Based on this evaluation, the Commission can either admit or dismiss the motion. If the motion is admitted, the judge is formally notified of the allegations, along with witness statements and supporting documents.
The judge then has 21 days to respond. After considering the judge’s response, the Commission decides whether the matter should proceed to a full hearing. Importantly, if a judge fails to attend the proceedings, this does not stop the process. The panel may continue or schedule adjournments as needed.
Citizen-Initiated Petition
The new regulations empower any ordinary citizen to submit a petition against a judge free of charge. Citizens can cite one or more reasons for removal, as outlined in Article 168 of the Constitution.
Petitions must include the following:
- Details of the petitioner and the judge
- Facts supporting the petition
- Any supporting documents or witness statements
Once submitted, the JSC acknowledges receipt within seven days and assigns a reference number. A preliminary review is then conducted within 30 days to assess the petition’s credibility and relevance.
If the petition appears to disclose valid grounds for removal, it is served to the judge, who has 21 days to respond.
The process may then move to a pre-hearing conference, where hearing dates are set and any preliminary objections are addressed.
Hearing and Final Determination
During hearings, both the Commission and the judge may present witnesses. All witnesses take oaths before giving their statements.
The process allows cross-examination and re-examination, and in some cases, hearings may be held in closed sessions to protect vulnerable or sensitive witnesses.
After all evidence and arguments have been presented, the panel or Commission must prepare a report within 14 days.
This report either recommends dismissal of the petition or advises that it be forwarded to the President for action under Article 168(4) of the Constitution. Decisions are communicated promptly to all parties involved.
Modernization and Accessibility
The regulations also encourage the use of technology: petitions can be submitted electronically, hearings may be attended virtually, and technological tools can be used to facilitate proceedings.
The JSC may extend timelines if necessary, maintain a register of petitions, and publish annual reports detailing removal cases.
Petitioners are allowed to withdraw their submissions, although the Commission may continue independently if it is deemed to be in the public interest.
The JSC is currently inviting the public to submit their views by April 8. If adopted, these rules will give Kenyans a direct role in holding judges accountable, allowing them to initiate the removal of judges who they believe can no longer perform their duties independently and impartially.
This marks a significant step in enhancing transparency, accountability, and citizen participation in Kenya’s judicial system, ensuring that judges uphold high ethical and professional standards.
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