JSC’S STATEMENT ON BBI PROPOSAL ON APPOINTMENT OF JUDICIARY OMBUDSMAN
An independent, impartial and efficient judiciary is an integral part of our constitutional system. Judges are required to maintain high standards of conduct to uphold the rule of law and inspire public confidence in the Judiciary. While underlining judicial independence, judicial accountability is equally important and must be embraced without compromising independence. In fact, 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.
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. 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 the Ombudsman and the possibility of different decisions being arrived at is real and may result into a constitutional quagmire. Of greater concern is the fact that there already exist other alternative channels such as the office of the Judiciary ombudsman and the Commission on Administration of Justice through which the public can voice complaints. For meaningful independence of the Judiciary, there should also be no uncertainty or confusion about the complaint and removal mechanism.
Secondly, the proposal seeks to enhance the number of executive appointees in the JSC from 4 to 5. The unusually heavy tilt towards Executive representation in the JSC compared to other Commissions has the potential danger of entrenching Executive authority in the JSC and by extension, in the Judiciary. This would be contrary to the letter and spirit of the 2010 Constitution as espoused in the final report of the Constitution of Kenya Review Commission and the Constitution of Kenya Review Act. The CKRC was aware of its mandate to examine and recommend the composition and functions of the organs of state, including the executive, the legislature and the judiciary and their operations, to maximise their mutual checks and balances and secure their independence. Moreover, such a move will only serve to erode public confidence in a Commission that was termed, before 2010, as no longer regarded as truly independent, so that the Judiciary is seen as vulnerable to government pressures.
It is for this reason that JSC recommends, among others, that the structure and functions of the Ombudsman, as proposed in the BBI report and the Constitution of Kenya (Amendment Bill) be abandoned and instead the Judiciary Ombudsman be appointed by the JSC with a mandate to conduct investigations and report to JSC, which will take appropriate action authorised by the
Constitution. The Office of the Ombudsman should also be enhanced, strengthened and made accessible to all members of the public.
HON. JUSTICE DAVID K. MARAGA, EGH
JUDICIAL SERVICE COMMISSION