Last month, former Law Society of Kenya (LSK) President Nelson Havi filed a petition with the Judicial Service Commission (JSC) seeking the removal of Chief Justice Koome and the entire Supreme Court bench, citing alleged misconduct and incompetence.
Additionally, the Ethics and Anti-Corruption Commission (EACC) has launched investigations into graft allegations within the Judiciary.
EACC Chairperson David Oginde confirmed that bribery claims against some judges are under review following a request for a probe by Chief Justice Koome
Now. If the Judicial Service Commission (JSC) were to find merit in these complaints and recommend the formation of tribunals to try all the accused judges, a series of consequential events would unfold, leading to a potential constitutional crisis.
The President would appoint a tribunal chaired by the Speaker of the National Assembly to investigate the CJ. Separate tribunals would also be established for each of the six other Supreme Court judges, including the Deputy Chief Justice (DCJ).
Upon the formation of the tribunals, all seven judges would stand suspended, effectively leaving the Supreme Court non-functional. The Court’s constitutional mandate would be in limbo.
If the tribunals recommend the removal of the judges, the President would be constitutionally bound to act within 14 days.
Suspended judges would have the right to appeal within 10 days to the Supreme Court. However, with the entire bench on suspension and earning half pay, no Supreme Court would be available to hear the appeal.
Since the Constitution does not set a time limit for the appeal process, the matter would remain unresolved indefinitely.
Faced with an unavailable Supreme Court, the judges might seek redress in the High Court, arguing that their rights under Articles 48, 50(1), and 159 of the Constitution have been violated. This legal maneuver, while unconventional, could be their only option.
If the crisis extends into 2027, there would be no Supreme Court to hear any petition challenging the presidential election. The Constitution stipulates that only the Supreme Court can determine such a petition within 14 days.
Should a presidential election petition fail to be heard within the required timeframe, the decision of the Independent Electoral and Boundaries Commission (IEBC) would stand, as established by the Supreme Court’s 2019 ruling in the Martha Karua case. The absence of a Supreme Court would render any justification for the delay irrelevant.
This sequence of events illustrates the makings of a constitutional crisis, raising serious concerns about judicial independence, the rule of law, and the stability of Kenya’s democratic institutions.
Who wants this crisis?
