A tribunal appointed by President Uhuru Kenyatta to probe the conduct of suspended High Court judge Juma Chitembwe has yet to start its work, thanks to a lacuna in the law.
Although the tribunal was sworn in on May 25 by Chief Justice Martha Koome, it has yet to start sitting. Judge Chitembwe confirmed he has not been notified by the tribunal of any sitting and declined to discuss the matter, saying he was driving.
Lawyers say the Constitution and the Judicial Service Act do not provide clear timelines when the tribunal should begin or end its work.
“According to Article 168(7) of the Constitution, the requirement is ‘to inquire into the matter expeditiously...’. No specific timeline stipulated,” said lawyer Charles Kanjama.
Another Nairobi-based lawyer, Shadrack Wambui, said the tribunal is supposed to be guided by practice directions formed by its chairperson.
“What is clear from a reading of the Second Schedule of the JSC (Judicial Service Commission) Act is that any accused judge must be served with the hearing notice and the allegations at least 14 days before the date the tribunal decides to hear the matter.”
Sources within the tribunal, which is chaired by appellate judge Mumbi Ngugi and has two joint secretaries, Mr Jasper Mbiuki and Sarah Yamo, said their seven-member team is still at the preparations stage.
“No date yet that has been set even in terms of agreeing when the matter can start. These things take time,” said a source who spoke in confidence as they are not allowed to address the media.
They attributed the delay to voluminous documents involved in the ouster case and the busy schedule of the members as most of them are top lawyers and judges.
Justice Chitembwe’s lawyer, Peter Wena, said he has yet to be served with a hearing notice. He added that the judge has since withdrawn a suit he had filed at the High Court challenging the disciplinary process commenced by JSC. The suit concerned the alleged misconduct and bribery.
“We have no idea when the sittings are starting. We are also yet to be served with a copy of the charges and directions,” said the lawyer.
The judge is on suspension with half salary, pending the decision of the tribunal on his suitability to continue serving in the Judiciary.
The President formed the tribunal following a recommendation by JSC that the judge be removed from office for misconduct involving presiding on his relative’s case. The basis of his tribulations are videos leaked by former Nairobi governor Mike Sonko last year that depicted him in a scheme to compromise an active court case involving succession in Kwale.
“We withdrew our petition at the High Court because it was against JSC and the court had declined to grant us conservatory orders. We saw it would be an academic exercise to proceed with it,” said Mr Wena.
The counsel of the tribunal, which was appointed on May 19, have also yet draw up the list of the allegations levelled against the judge, subject of the investigation together with a summary of the evidence.
The sources also disclosed that the pre-trial conference and sittings could start early September. This will be after the judges’ recess that will commence in early August and end in mid-September.
The Judicial Service Act provides that the tribunal serve the judge with the claims made against him 14 days before a hearing date. The tribunal is also supposed to set out its procedures and schedules on investigations and hearings.
