Petitioners want Mugenda, Gichohi removed from JSC as Maraga’s replacement begins
Appointment of the new Chief Justice could be thrown into confusion after three petitions were filed seeking the removal of two commissioners from the Judicial Service Commission (JSC) and the reinstatement of Deputy Chief Justice Philomena Mbete Mwilu as the acting chair of the commission.
The petitions seek to have commissioners Prof Olive Mugenda and Patrick Gichohi removed from the panel, a move whose implication will deny the commission the requisite quorum.
Yesterday, lawyer Njiru Munene for the petitioners told People Dailythe orders are likely to be out today after which if successful, would be served to the JSC to invalidate the exercise.
“The matters are of extreme public interest because the issues complained of herein clearly contravene the Constitution and the law, and are contrary to public policy.
As such, the deliberate violation of the Constitution and the law demonstrated herein must not be allowed to continue,” said Munene.
In the first petition, Philip Thuita and Damaris Wakiuru are seeking the removal of Mugenda from JSC because she is in violation of the Constitution by the fact that she holds two public offices.
“Mugenda was before and has after her appointment to her current position to date remained the Chairperson of the Kenyatta University Teaching and Referral Hospital and a lecturer at Kenyatta University,” they say.
She has, therefore, been serving in two distinct state office positions and has accordingly, in concert with the JSC, been perpetuating an illegality and/or violation of non-derogable leadership and integrity principles enshrined in the Constitution.
“Mugenda has on that basis alone acted in breach of the Constitution and in particular the aforesaid express and binding provisions thereof and is liable for removal,” reads the petition.
The petitioners affirm that Mugenda is in the circumstances acting in open violation of the Constitution and the law and unless the court intervenes, the JSC will be embarrassed in its mandate of promoting and facilitating the independence and accountability of the Judiciary and the efficient and transparent administration of justice.
“The confidence in the JSC’s operations will be seriously eroded to the detriment of the public on whose behalf it oversights judicial officers,” state the petitioners.
Further, the continued participation of Mugenda in the JSC’s proceedings unless stayed forthwith may expose all decisions of the commission to challenge or invalidation.
On the other hand, the constitutional validity of Patrick Gichohi to be the representative of the Public Service Commission (PSC) on the JSC after the expiry of his six-year tenure as a member of the PSC has been raised in a third petition.
The petitioners, Samuel Wanjiru and Michael Muchiri, term the matter as urgent since by the operation of the law, Gichohi ceased to be a member of the PSC on January 8, 2019, hence, he is not qualified to be the representative of the Commission on the JSC but he continues masquerading as such.
Commission chairperson
They state through Thuku and Njiru advocates that on January 9, 2013, former President Kibaki appointed Gichohi to be a member of the PSC for a single non- renewable term of six years, with effect from January 9, 2013 to January 8, 2019.
And on March 2, 2018, President Uhuru Kenyatta appointed Gichohi to be a member of the JSC representing the PSC, for a period of five years, with effect from March 2, 2018 to March 1, 2023.
“The President appointed Gichohi to represent the PSC at JSC by virtue of him being a commissioner of the PSC.
However, with his tenure as a member of the PSC having expired on January 8, 2019, his continued stay as a representative of the PSC means that the JSC is not properly constituted,” states the petition.
Unfortunately, the procedure under Article 251 of the Constitution for removal of a member of a commission does not apply to Gichohi. The procedure only applies where one is a bona-fide member of a commission.
States the petition: “In the instant case, Gichohi lost the capacity to represent PSC on JSC on January 8, 2019 when, by an act of the law, he ceased to be a member of the PSC.”
On the issue of Justice Mwilu, another petitioner wants her to act as the commission chairperson in the absence of a substantive holder of the office.
Samuel Gateri, one of the petitioners notes that Mugenda is listed as the ‘Interim vice-Chair/Commissioner to the Commission whereas Justice Mwilu is listed as simply “Commissioner, Ag Chief Justice”.
“For greater certainty, the information contained in the Commission’s website does not show a designated Chairperson to the Commission,” notes Gateri in the petition filed by Thuku and Njiru advocates.
“Our client believes that there may be a deliberate ploy by the Commission to designate the Interim vice-chair to be the chairperson, in the absence of the Chief Justice,” reads the petition.
They note that before exiting the Judiciary, former CJ David Maraga, appointed and designated the Deputy Chief Justice to act as the Chief Justice and perform all duties and functions of Chief Justice from December 12, 2020 until a new Chief Justice is appointed.
“On this basis, drawing from the constitutionally defined functions of the Chief Justice as the Chairperson of the JSC, and further acknowledging that the Acting CJ is the Deputy CJ Philomena Mwilu, she ought to be the rightful, legitimate and designated Chairperson of the Commission,” reads the petition.
To this end, the petitioner reckons that the office of the Chairperson to the Commission which is not designated in the information contained in the JSC website, is not vacant as it is implied and that the same is constitutionally occupied by the acting CJ.
