Judiciary officers not above the law, EACC says

The commission argues that Judiciary officials, like other public officers, are bound by the national values and principles of governance set out in the Constitution.

The Ethics and Anti-Corruption Commission says that stopping it from investigating senior Judiciary officers over alleged financial impropriety will amount to elevating them above the law.

Responding to an application filed last month by the Judicial Service Commission, seeking court orders to block the anti-graft agency from investigating its commissioners over financial impropriety, the agency says the JSC had not demonstrated that the National Assembly or the Auditor-General had acted in breach of the rules of natural justice in making adverse findings and recommendations against the judicial officers.

“The mere fact that the Auditor-General and the National Assembly did not accept the explanations given by JSC does not necessarily mean that no consideration was given to such explanation,” the EACC says.

The JSC, chaired by Chief Justice David Maraga, wants the EACC barred from investigating Commissioners Smokin Wanjala (Supreme Court Judge), Mohammed Warsame (Court of Appeal Judge), Emily Ominde (magistrate), as well as former Commissioners Ahmednasir Abdullahi, the Rev Samuel Kobia and Christine Mango.

The EACC, however, says the adverse findings and recommendations of the National Assembly cannot be said to be irrational since they were predicated upon an audit report submitted to the National Assembly by the Auditor-General in May 2014, which has not been challenged in court by the JSC.


The investigation against the six relates to meetings convened without the knowledge or approval of then Chief Justice Willy Mutunga and getting allowances. The meetings led to payments to suppliers on deals alleged to have been suspect.

According to the EACC, it cannot be irrational for the Public Accounts Committee to fault the relevant commissioners of the JSC for having convened meetings without the knowledge and approval of the Chief Justice as Section 22 of the Judicial Service Act provides that meetings of the JSC shall be convened by the chairperson, the Chief Justice.

The fact that Article 249(2) (b) of the Constitution provides for the independence of constitutional commissions and independent offices does not mean that such public bodies are not accountable to anyone, the EACC says.

The commission further argues that investigations into the alleged unlawful acts of a few individuals cannot be construed as an assault on the independence of the Judiciary.

“EACC cannot be restrained from discharging its constitutional and statutory mandate in the absence of any evidence of impropriety on its part,” the commission says in court papers.


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