Shield judges from frivolous allegations


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Supreme Court Judge JB Ojwang has been vindicated and can now take up his place in the top judicial office.

Although the tribunal has resolved an immediate issue, namely, the suitability of the law professor to continue holding the high office, it has raised fundamental questions about the due process of managing judicial affairs.

Right from the outset, the accusations levelled against Prof Ojwang appeared pedestrian and trivial and in all honesty, should not have been entertained first by the Judicial Service Commission, which should have subjected them to the rationality test, and secondly, the President, who eventually set up the tribunal. Challenging the suitability of a judge should be based on strong grounds, which fact JSC must uphold to protect the respectability of judicial officers.

When framers of the Constitution provided for tribunals to interrogate suitability of judicial officials, whose professional conduct and integrity have been brought to question, the understanding was that there would be high threshold to merit arriving at that eventuality.

That not every matter, however trifling, would necessitate a tribunal to inquire into a judge’s competencies and virtues.

For to allow that would open a Pandora’s Box, where every fortune seeker or adventurous fellows would set out to frame judicial officers and occasion investigations into their affairs and in the circumstances denigrate their standing within the profession and society at large.

Yet, the Supreme Court occupies an elevated position and the judges are pre-eminent and revered personalities.

At no time should the name of the court be disparaged through reckless pursuits. One of the critical function of the Supreme Court is to preside over presidential election disputes. And that has happened twice — in 2013 and 2017 — and during the latter, the court made a precedent-setting ruling by annulling President Kenyatta’s election on grounds of electoral malpractices.

That signals why the political class has deep interest in the court’s composition and operations.

At this point in time, the Supreme Court is confronted with transition as the tenure of Chief Justice David Maraga nears the end.

Justice Ojwang is equally advanced in age and approaching retirement in line with the constitutional provisions that caps the judges’ service at age 70.

Transition, and particularly for a high office like the Supreme Court, is fraught with intrigues and so it is difficult to rule out extraneous machinations to determine the next line-up at the court.

Judges and other judicial officials are no angels. Many have fallen short of expectation of the high office they hold. But that does not mean that the judicial officers should be exposed to lynching mobs. Tribunals should only be used as a last resort.

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