After months of speculation on who will finally create headache for the Supreme Court and attempt to dismantle the Judicial Service Commission, Nairobi lawyer Adrian Kamotho Njenga has turned out to be the one.
And now the fate of Chief Justice David Maraga and his deputy Philomena Mwilu rests in the hands of the 19-member Justice and Legal Affairs committee, chaired by Baringo North MP William Cheptumo.
Kandara MP Alice Wahome is his deputy.
Little is known about the petitioner, but the NationMonday established that he vied for the Kiharu parliamentary seat on a Jubilee ticket last year but lost at the nomination stage to Ndindi Nyoro after garnering 687 votes against Nyoro’s 28,323. He has also filed various other public interest cases in the courts.
By filing a petition for the removal of several JSC members, the lawyer has put the fate of two senior members of the Supreme Court in the balance and at the mercy of Jubilee MPs — who are more than eager to have a duel with both Mr Maraga and Ms Mwilu, whom they have publicly accused of quashing their August 8, 2017 presidential election victory.
By targeting the two as JSC members, Mr Njenga hopes to have the National Assembly request the President to name a tribunal that will ultimately bring Mr Maraga and Ms Mwilu to their defence, a move that could conceivably see them lose their positions at the apex court.
Other members of the JSC targeted by the petitioner include Justices Mohammed Warsame of the Court of Appeal and Aggrey Muchelule of the High Court, Prof Tom Ojienda, Ms Emily Ominde, and Ms Mercy Deche.
The petition, if it succeeds, could lead to an overhaul of the body created to promote the independence of the Judiciary, with consequences which are far from certain.
The JSC needs a quorum of six members and the petition and how it is handled could cripple it.
Mr Njenga argues that the seven members have adopted a subjective, personalised and vindictive style to handling complaints against judges.
“They have failed to abide by the standards laid down by the Constitution and precedents by the Justice and Magistrates Vetting Board, and have even departed from the rules applied by the JSC in the Justice Joseph Mutava removal petition,” he argues, pointing out that they have deliberately and completely abandoned all known rules or criteria in the disposal of petitions brought against judges and judicial officers.
“Contrary to the Constitution, which demands objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices, the seven JSC members have failed to demonstrate honesty in the execution of public duties,” he says.
But Prof Ojienda Monday dismissed the petition, terming it as ill-conceived and a desperate attempt by Mr Njenga to appeal the decisions of the commission to Parliament.
“We are living in interesting times,” said Prof Ojienda. “It is crazy.”
Prof Ojienda said the commission is a quasi-judicial tribunal whenever it sits to deliberate on disciplinary issues of judicial officers, and insisted that as long as the laid down procedures are followed in such meetings, their decisions are valid and can only be challenged in the high court through judicial review proceedings and constitutional interpretation applications.
“We will wait to be served and we shall respond appropriately,” he said.
The Speaker of the National Assembly will communicate the details of the petition to the plenary session of the House and commit the petition to the Justice and Legal Affairs committee.
The committee will then investigate the matter and file a report to the House for adoption. If the committee establishes culpability on the part of the seven, it may write an adverse report whose recommendations may include the formation of a tribunal to investigate the seven to serve as judges and commissioners on the JSC.
The Judiciary has had a difficult relationship with the Jubilee government after the Supreme Court nullified the outcome of the August 8, 2017 presidential election on grounds that the election, in which Mr Uhuru Kenyatta was declared the winner, was not conducted in accordance with the law.
The petitioner alleges that the seven have, without any constitutional regard or justification, dismissed separate petitions presented to the JSC against Justices Maraga, Mwilu, Lenaola, and Mativo.
He further claims that Mr Maraga and the six members irregularly and without any reasonable basis constituted a “special committee” to trump up allegations against, bully, humiliate and arm-twist five judicial officers.
The five are Justice Jackton Ojwang of the Supreme Court, Justice Paul Kihara who has been serving as President of Court Appeal until this month when President Uhuru Kenyatta picked him to be the next Attorney-General, and Justices Erastus Githinji, Martha Koome and Fatuma Sichale of the Court of Appeal.
He claims the special committee is investigating Justice Ojwang over the construction of a tarmac road leading to his private residence in his rural area. Mr Kihara is being put on the spot over the manner he constituted a Bench on a public holiday to hear an appeal of a High Court decision that annulled the appointment of presiding and returning officers in the repeat October 26 presidential election because it was done outside the law.
Justices Githinji, Koome and Sichale, who stayed the decision, are also on the firing line as JSC questions how they were able to sit on a public holiday without the clearance from the office of the Chief Justice, considering the day was a gazetted public holiday.
On the contrary, Mr Njenga says the seven had done nothing over the petition submitted to it by Nyeri MP Ngunjiri Wambugu against Justice Maraga, which he says JSC had “callously” dismissed without appropriate interrogation of the fundamental issues the MP had raised.