Guarding the Guardians: Determining the Suitability of Judges to Serve by the Judicial Service Commission in Kenya

Abstract

This project examines the extent JSC complies with the procedure of initiating the removal of judges while observing the administrative principles under the Constitution of Kenya. The study makes two arguments: the first argument is although JSC has the constitutional mandate to initiate the removal of judges, nevertheless, the removal procedure is inconsistent and fragmented because of inadequate Regulations under the JSC Act, 2011 which makes it difficult to discern the standard of proof. The second argument is although constitutional scholars and Commonwealth courts hold that the standard of proof is imperative in the removal of judges, nevertheless, JSC holds itself as a constitutional commission that is unbound by administrative rules because its role is to analyze the complaints on a preliminary inquiry and the standard of proof is inapplicable. By reviewing case law, legislative and institutional framework, this study uses JSC`s example to illustrate the nexus between fair administrative action and constitutional commission. It demonstrates that as a constitutional commission, JSC is bound by rules of administrative action, considering that to be heard and given written reasons, is a constitutional right and a legal requirement under the Fair administrative Action Act, 2015. The existing literature failed to critically interrogate the form and substance in the ousting of judges from office. In particular, failed to evaluate the place of administrative justice principles in the removal of judges from office by JSC. This study builds on existing knowledge in the area of Fair Administrative Actions involving Constitutional Commissions.