Parliament’s recommendations on JSC members suspect

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.