Par­lia­ment’s rec­om­men­da­tions on JSC mem­bers sus­pect

Nairobi Law Monthly - - Analysis -

Mal­ice is the only thing one reads from the Na­tional Assem­bly’s amended Pub­lic Ac­counts Com­mit­tee (PAC) Re­port on the spe­cial au­dit of Ju­di­cial Ser­vice Com­mis­sion that re­quired that six com­mis­sion­ers, in­clud­ing two judges and a mag­is­trate, be in­ves­ti­gated for fi­nan­cial im­pro­pri­ety. The re­port’s grave but hol­low and un­sup­ported rec­om­men­da­tion mak­ing it to the cover of the lo­cal dailies is par­tic­u­larly telling.

That re­port, to­gether with amend­ments made on the floor of the House has far-reach­ing rec­om­men­da­tions in­clud­ing that a Supreme Court judge, his Court of Ap­peal coun­ter­part and a Chief Mag­is­trate va­cate their po­si­tions in the Ju­di­cial Ser­vice Com­mis­sion ( JSC) to pave way for graft in­ves­ti­ga­tions, along­side three other for­mer com­mis­sion­ers – Se­nior Coun­sel Ahmed­nasir Ab­dul­lahi, Rev Sa­muel Ko­bia and Prof Chris­tine Mango.

Graver, how­ever, is the MPS’ de­mand that the Ethics and Anti-cor­rup­tion Com­mis­sion (EACC) should in­ves­ti­gate the six. It is hell-bent on ruining the ca­reers of the three ju­di­cial of­fi­cers in­clud­ing Supreme Court Judge Smokin Wan­jala, Court of Ap­peal Judge Mo­hammed Warsame and Chief Mag­is­trate Emily Ominde.

‘Gross ir­reg­u­lar­i­ties’

“Mem­bers of the Fi­nance and Ad­min­is­tra­tion Com­mit­tee of the JSC, Com­mis­sion­ers Smokin Wan­jala, Mo­hammed Warsame, Ahmed­nas­sir Ab­dul­lahi, Rev. Sa­muel Ko­bia, Chris­tine Mango and Emily Ominde, should be in­di­vid­u­ally in­ves­ti­gated by the Ethics and Anti-cor­rup­tion Com­mis­sion for their roles in some of the fi­nan­cial im­pro­pri­eties and ir­reg­u­lar­i­ties at the JSC,” the re­port reads.

It does not au­gur well for the name and pic­ture of a su­pe­rior court judge to ap­pear along­side words such as graft, cor­rup­tion, and scan­dal in a cover head­line of a lo­cal daily as that of Jus­tices Wan­jala and Warsame have, par­tic­u­larly be­cause the al­le­ga­tions are premised on non-fac­tual as­sump­tions or vendetta. On this front, if the core in­tent of the ar­chi­tects of the re­port that also took a swipe at Dr Willy Mu­tunga’s lead­er­ship style was to ma­lign the names of judges, they’ve had their way.

More telling is the fact that the rec­om­men­da­tion was not part of the re­port, which, in any case, con­tained nu­mer­ous in­ac­cu­ra­cies, but was in­serted af­ter amend­ments pro­posed by two MPS, chair of the House’s Jus­tice and Le­gal Af­fairs Com­mit­tee Sa­muel Chep­konga and his com­mit­tee mem­ber Irungu Kan­gata.

The most out­stand­ing of the al­le­ga­tions is that the com­mis­sion­ers were paid sit­ting al­lowances for meet­ings that were not prop­erly con­sti­tuted in ac­cor­dance with the Ju­di­cial Ser­vice Act, 2011. That Sec­tion 22 of the Ju­di­cial Ser­vice Act pro­vides that the quo­rum for the Com­mis­sion and any of its com­mit­tees shall be six and three mem­bers re­spec­tively and there­fore the JSC paid sit­ting al­lowances to­talling Sh1.6 mil­lion for meet­ings with­out quo­rum.

The au­dit re­port in­dicts Jus­tice Wan­jala, for in­stance, for an al­lowance he earned for a meet­ing held on Novem­ber 8, 2012, for which there was no quo­rum. How­ever, the said com­mis­sioner, the JSC says, had at­tended more than one JSC meet­ing on the same date and was paid for the full JSC meet­ing, held the same day and there are min­utes to the ef­fect. A com­mis­sioner is paid for one sit­ting in a day re­gard­less of the num­ber of meet­ings he at­tends.

This case is repli­cated in the al­le­ga­tions against other com­mis­sion­ers for which the Na­tional Assem­bly has rec­om­mended in­ves­ti­ga­tions. It is all about whether there was quo­rum and if the com­mit­tees were prop­erly con­sti­tuted, whether the mem­bers had at­tended more than one meet­ing on the day they are ac­cused for re­ceiv­ing al­lowances for com­mit­tees not prop­erly con­sti­tuted, and if the al­ter­na­tive meet­ings were prop­erly con­sti­tuted.

For com­mis­sioner Florence Mwan­gangi, for in­stance, the PAC in­dicts her for re­ceiv­ing an al­lowance on in May 2013 for a meet­ing not prop­erly con­sti­tuted. JSC, how­ever, says the al­le­ga­tion is not true since on the said date, there were two meet­ings, and she signed for only one, which was prop­erly con­sti­tuted.

His­tory with JSC

The Jus­tice and Le­gal Af­fairs Com­mit­tee of the House whose chair suc­cess­fully sought amend­ments to the PAC Re­port to have the com­mis­sion­ers in­ves­ti­gated by the EACC has a his­tory with the JSC. It all started with the sus­pen­sion in Au­gust 2013 of the for­mer Chief Reg­is­trar of the Ju­di­ciary, Gla­dys Shollei for in­ves­ti­ga­tions into al­leged fi­nan­cial im­pro­pri­eties against her. Chep­konga and the Le­gal Af­fairs com­mit­tee over­stepped their over­sight role and sum­moned the JSC, for al­legedly over­step­ping its man­date over Shollei, brew­ing an un­prece­dented stand­off be­tween the JSC and Par­lia­ment. The com­mis­sion­ers de­clined to hon­our the sum­mons sight­ing lack of man­date by the Chep­konga Com­mit­tee.

Sub­se­quently, the Le­gal Af­fairs Com­mit­tee spon­sored a mo­tion in Par­lia­ment seek­ing the re­moval of the six mem­bers of the Fi­nance and Ad­min­is­tra­tion Com­mit­tee of the JSC. Par­lia­ment ap­proved, de­bated and passed the mo­tion for the re­moval of the Com­mis­sion­ers. Con­se­quently, the Pres­i­dent ap­pointed a Tri­bunal to com­mence pro­ceed­ings against them. JSC how­ever, moved to the High Court and suc­cess­fully chal­lenged the res­o­lu­tion of Par­lia­ment. The Le­gal Af­fairs Com­mit­tee felt beaten and bit­ter and this, it seems, is pay­back time.^

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