The process of removal of a Judge from office

His statement in public follows the invitation of Chief Justice Martha Koome to all Kenyans with proof of misconduct or misbehaviour, wherever they may be, including the executive, to present evidence linking any judge to corruption with the JSC or refrain from blanket condemnation.

DP Gachagua claimed that he had evidence linking Justice Maina to graft. In July 2022, shortly before the general elections that swept Kenya Kwanza into power, Justice Maina ordered Gachagua, to forfeit Ksh.202 million for being proceeds of corruption.

She said the lawmaker could not prove how he raised the money.

Why can’t a Judge be sacked or relieved of duty like other state officers?

Article 167 of the Constitution of Kenya grants the Chief Justice and Judges a security of tenure as long as they are in office.

The Constitution states that:

(1) A judge shall retire from office on attaining the age of seventy years but may elect to retire at any time after attaining the age of sixty-five years.

(2) (5) The Chief Justice and any other judge may resign from office by giving notice, in writing, to the President.

The afore-going necessitates that there be a process to be followed in dismissing a judge in the event the judge has not attained the age of retirement nor has voluntarily written a letter of resignation to the President. The Constitution of Kenya, Chapter 10, Article 168 is specifically formulated to look into such a scenario. It gives direction, steps and parameters to be met before such a case is dispensed with. It states thus:

(1) A judge of a superior court may be removed from office only on the grounds of--

(a) inability to perform the functions of office arising from mental or physical incapacity;

(b) a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;

(c) bankruptcy;

(d) incompetence; or

(e) gross misconduct or misbehaviour.

In the case of RigathiGachagua, he has specifically mentioned presenting a petition based on point “e. gross misconduct or misbehaviour.” The reason why DP Gachagua is presenting this petition to the JSC and not presenting a case in court is owing to the following points…

(2) The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.

(3) A petition by a person to the Judicial Service Commission under clause (2) shall be in writing, setting out the alleged facts constituting the grounds for the judges' removal.

(4) The Judicial Service Commission shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President.

(5) The President shall, within fourteen days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the Judicial Service Commission--

(b) in the case of a judge other than the Chief Justice, appoint a tribunal consisting of--

(i) a chairperson and three other members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such but who, in either case, have not been members of the Judicial Service Commission at any time within the immediately preceding three years;

(ii) one advocate of fifteen years standing; and

(iii) two other persons with experience in public affairs.

(6) Despite Article 160 (4), the remuneration and benefits payable to a judge who is suspended from office under clause (5) shall be adjusted to one-half until such time as the judge is removed from, or reinstated in, office.

(7) A tribunal appointed under clause (5) shall--

(a) be responsible for the regulation of its proceedings, subject to any legislation contemplated in clause (10);

and

(b) inquire into the matter expeditiously and report on the facts and make binding recommendations to the President.

(8) A judge who is aggrieved by a decision of the tribunal under this Article may appeal against the decision to the Supreme Court, within ten days after the tribunal makes its recommendations.

(9) The President shall act in accordance with the recommendations made by the tribunal on the later of --

(a) the expiry of the time allowed for an appeal under clause (8), if no such appeal is taken; or

(b) the completion of all rights of appeal in any proceedings allowed for under clause (8), if such an appeal is taken and the final order in the matter affirms the tribunal’s recommendations.

(10) Parliament shall enact legislation providing for the procedure of a tribunal appointed under this Article.

Accordingly, the Judicial Service Act No. 1 of 2011 Revised Edition 2012 [2011] states the following on the removal of Judges from office:

 (1) The procedure governing the conduct of a tribunal set up for the purposes of removing the Chief Justice, Deputy Chief Justice or a judge shall be as set out in the Second Schedule. 

(2) If the tribunal referred to in subsection (1) is for the removal of a judge, other than the Chief Justice, the appointing authority shall appoint the Chairperson and the members shall elect a vice-Chairperson of the tribunal from amongst their number. 

(3) The Chairperson and vice-Chairperson appointed for purposes of removal of a Chief Justice or Deputy Chief Justice or elected under subsection (2) shall be persons of opposite gender. 

(4) The appointing authority may appoint a counsel to assist the tribunal.

The stage, once more, is set for the removal of another judge and the cast has been declared. The last judge to have been shown the door as recommended by a Tribunal was Justice Said Chitembwe.

His case is initiated in 2021 under the Jubilee Administration and the Tribunal finished its work and recommended his sacking during the Kenya Kwanza administration.

The onus remains with DP Gachagua to follow through and present a petition to the JSC, as is constitutionally required, otherwise, a lot of accusations coming from politicians against the Judiciary will remain just that, unsubstantiated accusations.