Judicial Service Commission under the New Constitution
Open. Accountable. Responsible
The JSC wields considerable authority in the discipline and accountability of all personnel in the Judiciary.
The Commission will recruit personnel in the Judiciary as well as oversee the improvement of the structures in the Judiciary and the competence of Judicial officers.
The JSC is headed by the Chief Justice and includes a representative from the various Courts, the PSC and a Commissioner representing members of the public.
Top on the list of the envisaged reforms in Kenya under the New Constitution is a new and restructured Judiciary. The Judicial Service Commission, JSC is expected to play a key role in recruitment especially of the top leadership in the Judiciary; and as a key institution to hear public grievances against any member of the Bench and facilitate the removal of a Judge unfit to hold office. The JSC therefore is, like other constitutional Commissions, well poised to "....... (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism." (Article 249). The JSC was one of the earliest Commissions to be constituted after the promulgation of the Constitution of Kenya, 2010: Sixth Schedule - Transitional and Consequential Provisions, Article 20:
20. (1) The Judicial Service Commission shall be appointed within sixty days after the effective date .......
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.
Not long after the promulgation of the New Constitution, the JSC was instrumental in the hiring of new Judges and especially those of the new Supreme Court of Kenya. Excerpts from Article 166:
166. (1) The President shall appoint— (a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, ....... and (b) all other judges, in accordance with the recommendation of the Judicial Service Commission.
In November 2012, the JSC conducted the recruitment of a new Deputy Chief Justice and recommended the appointment of Appeal Court Justice Kalpana Rawal to replace Nancy Baraza:
172. (1) The Judicial Service Commission shall ....... — (a) recommend to the President persons for appointment as judges;
The meaning in Article 172.(1) with respect to routine appointment of judges became the subject of debate in late June 2014 when the Law Society of Kenya questioned the President's act of omission in appointing just 11 out of 25 Judges that had been recruited by the Commission in January of the same year. The lawyers' body also questioned the long delay in the appointments. The President in turn averred that the appointment was a 'process' saying, “The process of appointing the remaining 14 is still ongoing and the President will give his approval or disapproval once it comes to an end.”
Seemingly, the President was not done (on his desire to have a say) in the so-called 'process' of appointments of Judges - and especially the CJ and the DCJ positions - for in December 2015, he signed into law, The Statute Law (Miscellaneous Amendments) Bill 2015, containing an amendment to the JSC Act 2011 that would henceforth require the Commission to forward to him three names (and not one name only as before) when recruiting for appointment to either of the positions of Chief Justice or Deputy Chief Justice. The Statute Law (Miscellaneous Amendments) Bill 2015:
Section 30 of the JSC Act (No. 1 of 2011). Delete subsection (3) and substitute therefore the following-
(3) The provisions of this section shall apply to the appointment of the Chief Justice and Deputy Chief Justice except that- (a) the Secretary shall, ....... forward the names of three qualified persons for each vacant position to the President.
With regard to delays in appointments, however, the amendments did place fixed timelines to the recruitment 'process' that the Commission, the President and the National Assembly have to adhere to:
30. (3) (a) the Secretary shall, within three days of the Commission’s vote, forward the names of three qualified persons for each vacant position to the President; (b) the President shall, within fourteen days of receipt of the names forwarded select the person to fill the each vacant position and forward the name of the person to the National Assembly for approval; (c) the National Assembly shall, within twenty-one days of the day it next sits after receipt of the name of a person nominated for appointment to the post of Chief Justice or Deputy Chief Justice vet and consider the person; (d) where the National Assembly approves of the appointment of a person to the post of Chief Justice or Deputy Chief Justice, the Speaker of the National Assembly shall forward the name of the person to the President for appointment; (e) where the National Assembly rejects the nomination of a person for appointment to the post of Chief Justice or Deputy Chief Justice, the Speaker shall within three days communicate its decision to the President and request the President to submit a fresh nomination; (f) where a nominee is rejected by the National Assembly the President shall within seven days, submit to the National Assembly a fresh nomination from amongst the three persons shortlisted and forwarded by the Commission under paragraph (a);and (g) if the National Assembly rejects all of the subsequent nominees submitted by the President for approval the Commission shall constitute a different selection panel and conduct the
recruitment afresh. (emphasis provided).
The JSC is also expected to actively participate in the recruitment of persons to hold the office of Kadhi in the Judiciary:
170. (2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless the person— (b) ....... as qualifies the person, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court.
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.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. NANCY MAKOKHA BARAZA v JUDICIAL SERVICE COMMISSION & 9 others  eKLR. Petition 23 of 2012. National Council for Law Reporting. The Attorney General.
3. REPORT AND RECOMMENDATION INTO THE CONDUCT OF THE HON. LADY JUSTICE NANCY MAKOKHA BARAZA  eKLR. Commissions and AdHoc Tribunals. Tribunal Referral Net 1 of 2012. National Council for Law Reporting. The Attorney General.
4. JSC ALLEGATIONS, CRJ RESPONSES AND JSC FINDINGS AND OBSERVATIONS - A WORKING SUMMARY. Retrieved October 23, 2013. The Judiciary Website.
5. Gladys Boss Shollei v Judicial Service Commission & another  eKLR. Petition 39 of 2013. National Council for Law Reporting. The Attorney General.
6. Votes and Proceedings of the National Assembly of Kenya, Tuesday 1 December 2015. Parliament of Kenya.
7. Kalpana H. Rawal v Judicial Service Commission & 4 others  eKLR. Petition No 386 of 2015. National Council for Law Reporting. The Attorney General.