Petition for the Removal of Hon. Justice David Maraga, Hon. (Lady) Justice Philomena Mwilu, Hon

PETITION FOR THE REMOVAL OF HON. JUSTICE DAVID MARAGA, HON. (LADY) JUSTICE PHILOMENA MWILU, HON. JUSTICE MOHAMED WARSAME, HON. JUSTICE AGGREY MUCHELULE, PROF TOM OJIENDA, HON. EMILY OMINDE AND HON. MERCY DECHE AS MEMBERS OF THE JUDICIAL SERVICE COMMISSION

TO: THE NATIONAL ASSEMBLY, REPUBLIC OF KENYA, MAIN PARLIAMENT BUILDINGS, NAIROBI, KENYA.

I, the undersigned, ADRIAN KAMOTHO NJENGA, a citizen of the Republic of Kenya, a lawyer, an ardent defender of the constitution and a resident of Nairobi County:

DRAW the attention of the House to the following:

1. THAT Hon. Mr. Justice David Maraga, Hon. (Lady) Justice Philomena Mwilu, Hon. Mr. Justice Mohamed Warsame, Hon. Mr. Justice Aggrey Muchelule, Prof. Tom Ojienda, Hon. Emily Ominde And Mercy Deche are constitutionally unfit to hold the office of member of the Judicial service Commission (JSC), and should be removed from office on the following grounds - 1. Serious violation of the Constitution including contravention of Chapter Six of the Constitution; 2. Serious violation of the law; 3. Gross misconduct in the performance of functions; 4. Incompetence.

The particulars constituting the grounds are as follows-

2. THAT the aforementioned JSC commissioners have failed to promote and facilitate the independence and accountability of the judiciary and the transparent administration of justice contrary to Article 172 (1) of the Constitution.

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3. THAT the aforesaid members of the Judicial Service Commission have seriously violated the Constitution by shielding, protecting, exonerating and irregularly clearing judges engaged in gross misconduct. The aforementioned members of the JSC have without any constitutional regard or justification dismissed petitions presented to the JSC uder Article 168 (2) against the following persons:

i. Hon. Mr. Justice David Maraga- A petition presented to the JSC by Hon. Ngunjiri Wambugu, MP was callously dismissed without an iota of investigation or appropriate interrogation of the fundamental issues raised therein ii. Hon. (Lady) Justice Philomena Mwilu-A petition by Derrick Ngumu raising weighty issues of judicial misconduct was conveniently brushed aside by the JSC members cited herein iii. Hon. Mr Justice Isaac Lenaola- A petition by Kelvin Njihia, raising severe integrity concerns against the conduct of Justice Lenaola was casually swept under the carpet by the aforesaid JSC members iv. Hon. Justice John Mativo- A petition presented to the JSC on 15th December 2017 disclosing flagrant plagiarism, outright dishonesty and illegal alterations of Court Rulings by Justice Mativo did nothing to awaken the conscience of the JSC members cited herein.

4. THAT the JSC members whose removal is sought herein have violated Articles 10, 35, 73, 168 and 232 of the Constitution, by having failed to account to the Kenyan public as to how judges who have engaged in blatant misconduct and constitutional breaches have been let off the hook.

5. THAT the aforesaid members have in bad faith, failed and negated their constitutional duty to enforce the Judicial Code of Conduct and Ethics (L/N 132 of 2016) even when incontrovertible evidence of breach of the code by judges

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6. THAT contrary to Article 10, 27, and 73 of the Constitution, the aforementioned JSC members have engaged in selective victimization of judges who have exhibited diligence, impartiality and judicial independence. The cited JSC members have irregularly and without any reasonable basis constituted a “special committee” in a manner as to trump up allegations, bully, humiliate and arm-twist the following judges:

i. Hon. Justice Prof. Jackton Ojwang- The allegations in this case are that there is a tarmac road that passes near his private residence in his rural home. It is in public domain that Hon. Justice Ojwang is on the radar of the aforesaid JSC members for his unapologetic exercise of judicial independence. ii. Hon. Justice Paul Kihara- The misguided pursuit of disciplinary action against the President of the Court of Appeal for constituting a bench to hear an urgent electoral matter that demanded disposal on a public holiday points to malicious agenda on the part of the aforementioned JSC commissioners. This purported investigations by the aforementioned JSC commissioners is entirely unconscionable in light of Sections 13 (1) and 18 (3) of the Court of Appeal (Organization and Administration) Act, 2015. iii. Hon. Justices, Erastus Githinji, Martha Koome and Fatuma Sichale- The purported investigations of these appellate court judges for performing their duties in good faith reveals excruciating levels of malevolence, malice and glaring witch-hunt on the part of the JSC commissioners, and is inherently incompatible with Article 160 (5) of the Constitution, given that the judges acted in good faith and lawfully performed legitimate judicial functions as stipulated under Section 13 Page 3 of 8

(1) (b) of the Court of Appeal (Organization and Administration) Act, 2015 .

7. THAT contrary to Article 27, which confers equality before the law and the right to equal protection benefit of the law, the aforesaid members of the JSC have failed to uphold equality and freedom from discrimination by selectively victimizing certain judges while letting others to walk scot free with phenomenal misconduct.

8. THAT the aforesaid members have adopted a subjective, personalized and vindictive style to handling complaints against judges. They have failed to abide by the standards laid down by the constitution, precedents by Justice and Magistrates Vetting Board and have even departed from the rules applied by JSC in the Justice Joseph Mutava removal petition. The aforesaid members have deliberately and completely abandoned all known rules or criteria in the disposal of petitions brought against judges and judicial officers.

9. THAT contrary to Article 73 (2) of the Constitution which demands objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices; the aforementioned commissioners of JSC have failed to demonstrate honesty in the execution of public duties.

10. THAT by using their positions to influence the conduct of judicial affairs by judges and judicial officers, the said JSC commissioners have interfered with judicial independence and allowed personal interests to conflict with public good.

11. THAT as a result of the unconstitutional conduct of the aforesaid JSC members, the judiciary has become extremely politicized, unpredictable and highly polarized with judicial officers having to look over their shoulders, to

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12. THAT in utter neglect of duty imposed by Article 172 of the Constitution, the aforementioned JSC commissioners, have failed to recommend to the President, persons for appointment as judges of the Court of appeal despite the diminished numbers of judges in the appellate court. Effectively, the cited JSC commissioners have crippled the administration of justice at the various Court of Appeal stations (Nairobi, Kisumu, Nyeri, Malindi).

13. THAT despite the huge financial allocations to the judiciary by Parliament, the JSC under the stewardship of the cited members has remained in inertia even as less than twenty (20) judges of appeal are left to handle appeals across the country. Constitution of appellate benches has become a nightmare in what is evidently a deliberate strategy by the aforementioned commissioners to suppress and paralyze the Court of Appeal in a manner that has severely compromised the citizenry access to justice .

14. THAT an advertisement put up by the JSC for recruitment of judges of appeal in August 2017 was curiously and irregularly cancelled without explanation or justification.

15. THAT contrary to Article 232, and Section 5 of the Public Service (Values and Principles) Act, 2015, the cited JSC commissioners have tremendously faltered on professional ethics, transparency, accountability to the public for decisions and actions; and on the imperatives of sound leadership and integrity.

16. THAT the cited JSC commissioners in the exercise of the functions entrusted to them, failed to protect, administer and defend the Constitution as mandated under Article 3 of the Constitution. They have failed to uphold

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17. THAT the indiscrete conduct of the aforementioned JSC commissioners has tremendously cast the reputation, prestige, authority and standing of the Kenya’s Judiciary to horrendous disgrace, ridicule and contempt locally and globally.

18. THAT the conduct of affairs by the cited JSC commissioners has severely eroded and undermined the public confidence in the judiciary.

19. THAT under Articles 94 and 95 of the Constitution the National Assembly is mandated to protect the Constitution and to resolve issues of concern to the people. Accordingly, the National Assembly has a duty to intervene to ensure that the Judicial Service Commission does not degenerate into further mediocrity on account of unconstitutional conduct by its members.

20. THAT Article 251 of the Constitution confers the National Assembly the oversight jurisdiction over every commission and independent office including the Judicial Service Commission. Thus, the National Assembly has a constitutional obligation to ensure that the aforementioned members of the Judicial Service Commission, are held accountable for derogation from binding constitutional standards.

21. THAT unless the aforesaid members of the JSC are removed from office, the public confidence in the judiciary and the administration of justice in Kenya will further wane or eternally diminish.

HEREFORE your humble petitioner prays that the National Assembly finds-

1. THAT Hon. Mr. Justice David Maraga, Hon. (Lady) Justice Philomena Mwilu, Hon. Mr. Justice Mohamed Warsame, Hon. Mr. Justice Aggrey Page 6 of 8

Muchelule, Prof. Tom Ojienda, Hon. Emily Ominde and Hon. Mercy Deche have jointly and severally contravened the Constitution and the law;

2. THAT Hon. Mr. Justice David Maraga, Hon. (Lady) Justice Philomena Mwilu, Hon. Mr. Justice Mohamed Warsame, Hon. Mr. Justice Aggrey Muchelule, Prof. Tom Ojienda, Hon. Emily Ominde and Hon. Mercy Deche have jointly and severally committed acts of gross misconduct in the performance of functions or otherwise;

3. THAT Hon. Mr. Justice David Maraga, Hon. (Lady) Justice Philomena Mwilu, Hon. Mr. Justice Mohamed Warsame, Hon. Mr. Justice Aggrey Muchelule, Prof. Tom Ojienda, Hon. Emily Ominde and Hon. Mercy Deche are jointly and severally incompetent.

4. THAT the National Assembly be pleased to find that this Petition discloses overwhelming grounds for removal of the aforesaid members of JSC as enunciated at Article 251 (1) of the Constitution.

5. THAT the National Assembly be pleased to send the petition to His Excellency the President, for the appointment of a tribunal to investigate the matter expeditiously, report on the facts and make a binding recommendation to the President.

And your PETITIONER will ever pray

NAME OF PETITIONER______ADRIAN KAMOTHO NJENGA______

FULL ADDRESS____P.O BOX 17429-00100, NAIROBI_____ Page 7 of 8

NATIONAL ID. NO.___22004586_____

SIGNATURE______

Dated at NAIROBI this ___26th ___ day of __February_, 2018

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