Extent of administrative discretion of the judicial service commission on the right to be heard during removal of judges. What happens when the grounds for removal aren’t met?

Abstract

A decade back, Kenya promulgated a new Constitution which has been termed as transformative. One of the salient features was the judicial independence that it introduced, an example being the formation of the Judicial Service Commission under commissions and independent offices which was milestone in ensuring autonomy of the Judiciary arm of government. The Commission’s progress has been hailed to a large extent. However, it has also received backlash in equal measure especially because of the large powers that it has. Of concern has been the way it conducts the initiation of the removal process of judges from office. The Constitution certifies the Commission to be the only one that can initiate the removal process of judges from office. Being an administrative body there is legitimate expectation that it shall adhere to principles of administrative law in conducting this role. More so, the Judicial Service Act has given the Commission the authority to formulate preliminary procedures that ought to guide it while initiating the removal process, but then they are non-existent. The result has been unregulated administrative discretionary power. This has brought uncertainties in the execution of this role. Furthermore, the Commission is not allowed to discipline judges whose misconduct is not gross as provided under Article 168(1) of the Constitution. Does this interpret there is an offence without a sanction? The aim of this dissertation is thus to try and understand the nature of administrative discretion, the extent that the Commission can exercise it in the initiation of the removal process of judges and the way forward for judges whose misconduct does not amount to gross as well as propose recommendations that will ensure prompt and efficient accountability of the JSC in the performance of its administrative powers.