EXPLAINER: How Kenyans Can Petition Supreme Court Judge Removal
The Judicial Service Commission (JSC) has published comprehensive regulations that govern and clearly outline the procedures for removing judges from office.
A draft of the procedure regulations shared confidentially consists of procedures initiated by both the commission and the public.
The document provides a step-by-step framework for holding judges accountable while safeguarding the independence of the judiciary.
The regulations, made under Sections 47(1) and 47(2)(c) of the Judicial Service Act, apply to superior court judges and are intended to give effect to Article 168 of the Constitution.
They cover two main avenues: removal initiated directly by the JSC, and petitions submitted by members of the public.
Under the new rules, a panel of at least five JSC members, including a chairperson, is constituted to handle all petitions or Commission-initiated removals.
The panel is empowered to summon witnesses, receive evidence, and require the production of relevant documents, ensuring thorough investigations.
Commission-Initiated Removal
If the JSC receives credible information suggesting grounds for removal, such as incapacity, incompetence, gross misconduct, breach of judicial ethics, or bankruptcy, it conducts a preliminary evaluation to determine the facts.
The commission may then admit or dismiss the motion. If admitted, the judge is served with framed allegations, witness statements, and supporting documents.
The commission will then grant the accused judge a right of response within 21 days.
After the response, the commission further proceeds with its evaluation, determining whether the case should proceed to a formal hearing.
Non-attendance by a judge does not halt proceedings, as the panel may proceed or adjourn as necessary.
Petition by a Citizen
Interestingly, under the new rules, any ordinary citizen can lodge a petition against a judge free of charge, citing one or more grounds for removal as specified under Article 168 of the Constitution.
Petitions must include details of the petitioner and the judge, supporting facts, and any documents or witness statements.
JSC will then acknowledge receipt of the petition within seven days and assign it a reference number.
The commission shall conduct a preliminary review within 30 days to assess credibility and relevance.
If the petition is found to disclose a possible ground for removal, it is served on the judge, who has 21 days to respond.
Petitions may then proceed to a pre-hearing conference to set hearing dates and address preliminary objections.
Hearing and Determination
During hearings, both the commission and the judge may present witnesses, who take oaths before giving evidence.
Cross-examinations and re-examinations are allowed, and hearings may include protected or vulnerable witnesses conducted in closed sessions.
After all submissions, the panel or commission prepares a report within 14 days, recommending either dismissal or forwarding the petition to the President for action under Article 168(4) of the Constitution.
The commission ensures that decisions are communicated promptly to all parties.
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The regulations also allow for electronic submission of petitions, virtual attendance at hearings, and use of technology to facilitate proceedings.
JSC may extend timelines when necessary, maintain a register of petitions, and publish annual reports on removal cases.
Petitioners may also withdraw their submissions, though the commission can proceed independently if in the public interest.
The commission requires the public to submit their views before April 8.
If absorbed, the public can start initiating the removal of judges whom they feel have evidence that they cannot continue to perform their duties independently.
EXPLAINER: How Kenyans Can Petition Supreme Court Judge Removal
