Composition and Tenure

 

cj mutunga Chief Justice Willy Mutunga, Chair of the Judicial Service Commission

 

 

 

The Chief Justice is the chair of the Judicial Service Commission.

171. (2) The Commission shall consist of— (a) the Chief Justice, who shall be the chairperson of the Commission;

When the JSC was constituted, it had no substantial chairperson. It effectively recruited its own chairperson given that it was involved in the vetting and nomination process to recruit a chief justice.

The membership of this Commission is mostly drawn from or nominated by constitutional offices/bodies in the legal fraternity, as well as a man and woman nominated by the President to represent the interests of the general public:

(2) The Commission shall consist of— (a) the Chief Justice, who shall be the chairperson of the Commission; (b) one Supreme Court judge elected by the judges of the Supreme Court; (c) one Court of Appeal judge elected by the judges of the Court of Appeal; (d) one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; (e) the Attorney-General; (f) two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates; (g) one person nominated by the Public Service Commission; and (h) one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.
(3) The Chief Registrar of the Judiciary shall be the Secretary to the Commission.

These members of the JSC other than the Chief Justice and the AG, serve for a limited period - the term of the current members expires sometime in early 2016:

(4) Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.

The term of the current Deputy Chief Justice (appointed in 2013) was expected to end before 5 years in 2016 when she would be 70 years old:

167. (1) A judge shall retire from office on attaining the age of seventy years, .......

The Commission, expecting her to retire in 2016, advertised her position in September 2015, prompting her to move to the high court where she basically argued that she was appointed a Judge under the old constitution that had set the retirement age for judges at 74 years. The court ruled that 70 years is the applicable age for all judges to retire whether serving before the promulgation of the Constitution of Kenya 2010.

Interestingly, although it is the JSC that recruits judges, the High Court ruling above found that the Commission had no mandate to issue a retirement notice to her.

The DCJ continues to serve in office into 2016 as her appeal is before the Appeals Court.

 

 

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