JSC recommends the removal of Justice Chitembwe

by Lawyer Wanz
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The Judicial Service Commission (JSC) has recommended the removal of High court Judge Said Chitembwe from office over gross misconduct and has sent its decision to President Uhuru Kenyatta for further action.

In a statement issued on Wednesday, May 4, 2022, the commission stated that it had reviewed the petitions against Justice Chitembwe and found he was not fit for office over gross misconduct.

On April 27, 2022, the JSC considered the report of the panel on the petition initiated by the Commission on its own motion and is satisfied that the Petition discloses grounds for the removal of Hon. Justice Chitembwe Said Juma from office, pursuant to the provisions of Article 168 ( 1 ) of the Constitution,” the JSC says.

According to the JSC, the panel constituted to consider the petitions concluded its work and presented its report to the full commission for deliberation before the final recommendations were made to have the judge removed from office.

Accordingly, the commission resolved to send the Petition to His Excellency the President for his further action in accordance with Article 168 ( 4 ) of the Constitution,” JSC states.

Chitembwe’s troubles started after former Nairobi Governor Mike Sonko shared videos and photos where the judicial officer allegedly received bribes to influence cases before him.

In the videos, Sonko recorded a meeting with the judge’s brother soliciting and receiving a bribe on his behalf. The video sparked a debate on social media platforms and the mainstream media.

There are several petitions where the judge was accused of gross misconduct in handling their cases.

In other news, The Judicial Service Commission (JSC) unfairly sacked former chief registrar of the Judiciary, Gladys Shollei, and she is entitled to compensation, the Supreme Court has ruled.

Ms Shollei, now the Uasin Gishu woman representative, was sacked in 2013 following allegations that she misused Sh2.207 billion.

The then JSC chairperson, former Chief Justice Willy Mutunga, had said that Ms Shollei was fired for incompetence, misbehaviour, violation of the code of conduct for judicial officers, insubordination and violation of Chapter Six and Article 232 of the Constitution.

But the Supreme Court Thursday ruled that Ms Shollei was removed from office without being given the reasons for the action, which amounted to a violation of her rights.

The JSC violated Ms Shollei’s right to fair administrative action by failing to give her reasons for her termination. The least that JSC would have done was to enclose its reasons in the removal letter, the same way it enclosed the allegations against Ms Shollei in its letter dated September 10, 2013,” said the Supreme Court.

Following its finding, the apex court directed that the case be referred back to the Labour Relations Court for assessment of the damages owed to Ms Shollei for violation of her rights to fair administrative action and access to information.

The court allowed an appeal she filed challenging the appellate court’s finding that she was lawfully sacked.

The top judges also faulted the Court of Appeal’s finding that it would have been impractical for JSC to give specific reasons regarding the 87 allegations in the termination letter.

Ms Shollei was sent home in October 2013 over allegations of insubordination, misconduct and financial mismanagement. But she decided to challenge her removal in court, a process that has taken eight years.

In the 18-page document containing the allegations, Ms Shollei was also accused of mismanagement of human resource, irregularities and improprieties in procurement, countermanding decisions of the Commission and misbehaviour.

The Supreme Court further ruled that the JSC violated her right of access to information by declining to give her necessary documents to defend herself.

Regarding her contention that she was not given reasonable time to defend herself, the apex court dismissed the argument after finding that the 39 days granted to her by the JSC were reasonable.

The JSC did not violate the appellant’s right to fair hearing as she was given sufficient time to defend herself,” said the Supreme Court.

The court also declared Section 23 of the Third Schedule to the Judicial Service Act unconstitutional. The said law limits the right of a judicial officer facing disciplinary proceedings to access information.

It provides that an officer in respect of whom disciplinary proceedings are to be held is not entitled to copies of office orders, minutes, reports or recorded reasons for decisions.

It was not, in our opinion, the intention of the drafters of the Constitution that a vague provision in a schedule, such as the one in Section 23 of the Third Schedule of the Act, can limit a constitutional right or fundamental freedom in a manner that is reasonable and justifiable in an open democratic society,” said the Supreme Court judges.

They added that the refusal by JSC to give Ms Shollei the information prejudiced her as she could not adequately challenge her removal from office.

We find that JSC’s reliance of the proviso in Section 23 of the Third Schedule to limit Ms Shollei’s right to access to information guaranteed in the Constitution was unfounded,” said the judges.

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