BY SAM ALFAN.
Judicial Service Commission (JSC) has waded into the proposed amendment of the constitution through the BBI urging the secretariat to abandon plans for the Judiciary Ombudsman.
The JSC urged the secretariat to drop the proposal that the Judiciary Ombudsman be appointed by the President with the approval of Parliament, and instead, allow the commission to do the appointment.
In the statement read by Chief Justice David Maraga, the JSC said the proposal as contained in the BBI report is a direct conflict and duplication of roles between the Ombudsman and the JSC and the risk of parallel complaints being instituted with the JSC as well as the Ombudsman.
He said the two bodies are likely to arrive at different decisions and which may result into a constitutional quagmire.
“Of greater concern is the fact that there already exist other alternative channels such as the office of the Judiciary ombudsman and the Commission on Administration of Justice through which the public can voice complaints,” he said.
Justice Maraga said the office of the Ombudsman, which is currently held by DCJ Philomena Mwilu should also be enhanced, strengthened and made accessible to all members of the public.
“For meaningful independence of the Judiciary, there should also be no uncertainty or confusion about the complaint and removal mechanism and an independent, impartial and efficient judiciary is an integral part of our constitutional system,” Maraga adds.
The commission adds that the proposal further seeks to enhance the number of executive appointees in the JSC from four to five.
He added that the unusually heavy number of executive appointees has the potential danger of entrenching Executive authority in the JSC and by extension, in the Judiciary.
“This would be contrary to the letter and spirit of the 2010 Constitution as espoused in the final report of the Constitution of Kenya Review Commission and the Constitution of Kenya Review Act,” Maraga added.
He said that CKRC was aware of its mandate to examine and recommend the composition and functions of the organs of state, including the executive, the legislature and the judiciary and their operations, to maximise their mutual checks and balances and secure their independence.
He said the proposal will only serve to erode public confidence in a Judiciary that was termed, before 2010, as no longer regarded as truly independent.
The commission further adds that judges are required to maintain high standards of conduct to uphold the rule of law and inspire public confidence in the Judiciary.
“While underlining judicial independence, judicial accountability is equally important and must be embraced without compromising independence. In fact, the first BBI Taskforce Report (published in 2019) offered a broad recommendation that strong reforms need to be undertaken to increase public confidence in the Judiciary. In doing so, the Taskforce acknowledged the need to guard the independence of the judiciary while also seeking to enhance its accountability to the people of Kenya,” he said.
