Authority

 

The Judicial Service Commission is a constitutional Commission under the New Constitution. Chapter 15 - Commissions and Independent Offices:

248. (2) The Commissions are- (e) the Judicial Service Commissions;

Excerpt from Chapter 10 - Judiciary, Part 4 - Judicial Service Commission:

171. (1) There is established the Judicial Service Commission.

The public's expectation of the JSC is a Commission that will be at the forefront of safeguarding their rights and ensure the delivery of justice to all. It is the JSC's responsibility to, on behalf of the public, make sense of the often complex and convoluted justice processes and systems, and ensure timely, fair and credible justice is delivered to every Kenyan every time:

172. (1) The Judicial Service Commission shall promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice ....... 

To this end, the JSC is responsible for the terms of service of judicial officers, for the training of these officers, and the restructuring of the entire Judiciary's systems and processes in order to raise the efficiency levels of this important arm of government to deliver justice:

172. (1) The Judicial Service Commission shall ......... (b) review and make recommendations on the conditions of service of— (i) judges and judicial officers, other than their remuneration; and (ii) the staff of the Judiciary; (d) prepare and implement programmes for the continuing education and training of judges and judicial officers; and (e) advise the national government on improving the efficiency of the administration of justice.

The JSC is also expected to watch over the individual actions and competence of Judges and other senior Judicial officers and is free to initiate an investigative process for the removal of such officers, on its own volition or out of the petition lodged by a member of the public. Excerpts from Articles 252, 168:

252. ...... commission ....... (a) may conduct investigations on its own initiative or on a complaint made by a member of the public;

168. (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.

Indeed, it came to pass that in December 2011, the JSC did initiate such a process for the removal of the first Deputy Chief Justice and Vice President of the Supreme Court Nancy Baraza under the New Constitution, upon a petition by a private security guard. The guard had accused the Deputy Chief Justice of assault and of threatening her with a firearm. 

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

After conducting its own investigations, the Commission was of the opinion that the Deputy Chief Justice be removed from office; and so it sent the petition to the President in January 2012, whereupon, a Tribunal was formed to investigate the allegations against her. She had lodged a constitutional appeal in the High Court against the investigations being conducted by the JSC citing violation of fundamental rights and individual freedoms, but the appeal was dismissed . The Tribunal found her unfit to hold office and recommended her removal. Although the Deputy Chief Justice appealed in the Supreme Court, against her removal, she eventually opted to resign in October of 2012, and to drop her appeal.

The Constitution of Kenya 2010 has expressly granted the JSC the power to compel a witness to appear before it to assist with such investigations:

252. (3) The following commissions ....... have the power to issue a summons to a witness to assist for the purposes of its investigations— (b) the Judicial Service Commission;

To ensure there is accountability in the Judiciary, the JSC (and not the Judiciary) is empowered to discipline and to fire errant judicial officers (other than those serving in Superior Courts):

172. (1) The Judicial Service Commission shall ....... (c) appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, ........

In early September of 2013, the Commission revealed that it was investigating its first Chief Executive, i.e., the Chief Registrar of the Judiciary, for scores of malpractices saying, "On September 9, 2013, the Judicial Service Commission served the Chief Registrar of the Judiciary (CRJ), Mrs Gladys Boss Shollei, with 87 allegations touching on financial and human resource mismanagement, irregularities and illegalities in procurement, and misbehaviour."

On the 18 October 2013, the Commission found the Registrar guilty of most of the allegations and removed her from office citing incompetence, misbehaviour, violation of the prescribed code of conduct for judicial officers, violation of Chapter 6, and Article 232 of the Constitution of Kenya, 2010, and insubordination. Indeed, the JSC found some of the allegations serious enough and went ahead to invite its sister Commission, the Ethics and Anti-Corruption Commission EACC, to launch criminal investigations on her conduct while she held office. The decision of the JSC can be downloaded here.

However, on the 7th of February 2014, the Industrial Court found the JSC to have violated the rights of the CRJ and that she was entitled to compensation for the unlawful and unfair loss of employment.

Moving on, the JSC also plays an oversight role over the Judiciary in that it (and again, not the Judiciary) is empowered to create senior offices of Registrar within the Judiciary. Excerpts from Part 1 Judicial Authority and Legal System, Chapter 10 - Judiciary:

161. (3) The Judicial Service Commission may establish other offices of registrar as may be necessary.

 

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