The qualification of Supreme Court Judge in Kenya.


The qualification of Supreme Court Judge in Kenya.

The constitution sets the bar very high on the qualifications of a Supreme Court judge. Key among these qualifications is the requirement that a person holding this very esteem position must “have a high moral character, integrity and impartiality” as stipulated in article 166 2 (c ) of the constitution.

Simply put, any person appointed as a Supreme Court judge should therefore, like Ceaser’s wife, be beyond reproach.

The petition filed by Malika Ngumu at the Judicial Service Commission (JSC) against Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola, accusing them of gross misconduct and breach of judicial code of conduct should be treated with the urgency and seriousness it deserves.

As it did with the petition by former LSK CEO Apollo Mboya against Justices Njoki Ndung’u, Jacktone Ojwang and Mohammed Ibrahim for allegedly going on strike, JSC must move with speed and investigate Justices Mwilu and Lenaola.

Yet the JSC is not dealing with a matter as simple as absconding duty. Here are two judges accused of committing the cardinal sin — meeting and exchanging phone calls with lawyers and persons representing NASA principal Raila Odinga during the hearing of his petition challenging the re-election of President Uhuru Kenyatta.

This is a matter that touches the very core of the Kenyan nation as the judges were hearing a petition on the sovereign will of the people as expressed in the August 8 elections. The issue is also of paramount importance in that it speaks to the very sensitive issue of the independence of the Judiciary. The strides that Kenyans have made to build institutions of governance should be jealously guarded and the personnel serving in these institutions must be strictly guided by the letter and spirit of the constitution. This way, we will consolidate the gains made as we break new grounds of reforms.

Back to the cancellation of the Presidential results. If indeed there were improper conduct by the two judges, then it calls into question the integrity of the verdict of the majority judges who ruled in favour of the petitioner, throwing Kenya back to the polls and dividing the country right down the middle.

If Mwilu and Lenaola met, exchanged calls with parties to the Supreme Court petition, then there is no denying that they are likely to have thrown impartiality out of the window. Their decision cannot therefore be said to be fair and just. One can therefore even forgive President Kenyatta and Deputy President William Ruto’s incessant attacks on the decision Supreme Court judges. Under these highly suspect circumstances, who would not read malice in the court’s decision to invalidate President Kenyatta’s win?

Following the ruling, NASA has been basking in the glory of victory. They never miss an opportunity to praise the judges for their wisdom that led to the ruling when it was delivered on September 1. They have also been vehemently defending the Supreme Court and condemning any criticisms leveled against the decision and on Chief Justice David Maraga and his colleagues by Jubilee and its leadership. However, if turns out that they indeed went to bed with Justices Mwilu and Lenaola, they will be exposed as the enemies of independent institutions that they claim to value.

We trust that the truth will eventually be out. For this to happen, NASA should keep out of the way and let the Judicial Service Commission, the judge’s employer, to investigate and determine where. They are as much under the spotlight themselves as Justices Mwilu and Lenaola for interfering with a judicial process, which is in itself a criminal act.

And with such serious allegations made against Justices Mwilu and Lenaola, the right and honourable thing to do is to resign to pave way for comprehensive investigation by the JSC. If they are cleared of wrong doing, they would be free to return to their jobs. They have nothing to be afraid of if they are innocent. Only then will the credibility and independence of the Judiciary be truly manifest.

Overall, Kenyans want this circus to end. We want a free and fair repeat polls. Independent institutions have to perform their roles diligently and without being compromised by politicians. The electoral commission and the Judiciary have hit a rocky road once more. We hope they will find a way out of this morass sooner rather than later and effectively perform the roles conferred upon them by the constitution. What must never be compromised however is the sovereign will of the people to democratically choose their leaders.

By Sarah Korere,Laikipia North MP

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