BBI: Maraga recommends Ombudsman be appointed by JSC, not the President

Chief Justice David Maraga has expressed concerns of the Judicial Service Commission (JSC) regarding the proposal in the Building Bridges Initiative (BBI) Bill about the creation of the Judiciary Ombudsman who shall be appointed by the President with the approval of the Senate.

CJ Maraga, in a press address on Friday, proposed that the Judiciary Ombudsman be appointed by the JSC instead of the President as proposed in the BBI Bill.

He also stated that the JSC is tasked with ensuring independence and accountability of the Judiciary hence creation of the office of Ombudsman appointed by the Head of State will create a conflict.

Maraga further said the country may witness a constitutional crisis in cases where parallel decisions are arrived at by the JSC as well as the Ombudsman.

“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.

“The BBI steering committee, in its final report, has made far-reaching recommendations regarding the creation of the Judiciary Ombudsman who shall be appointed by the President with the approval of the Senate. Several concerns arise from this proposal.”

He added: “The constitution vests in the JSC, an independent commission, the responsibility of ensuring the independence and accountability of the Judiciary. The result of the BBI proposal is a direct conflict and duplication of roles between the Ombudsman and the JSC. The risk of parallel complaints being instituted with the JSC as well as Ombudsman and the possibility of different decisions being arrived at is real and may result into a constitutional quagmire.”

CJ Maraga, who also doubles up as chairperson of the JSC, further opposed the BBI proposal to enhance the number of executive appointees in the commission from 4 to 5.

According to Maraga, this has the potential danger of entrenching executive authority in the JSC and, by extension, the Judiciary contrary to the constitution.

“It is for this reason that the JSC recommends, among others, that the structure and functions of the Ombudsman as proposed by the BBI report and the Constitution of Kenya Amendment Bill 2020 be abandoned and instead the Judiciary ombudsman be appointed by the JSC with a mandate to conduct investigations and report to the JSC which will take appropriate action as authorized by the constitution,” he stated.

“The office of the ombudsman should also be enhanced, strengthened and made accessible to members of the public.”

CJ Maraga is set to leave office on Friday pending his retirement after serving for five years, paving way for a formal handover ceremony to be held on January 10, 2021.