Chief Justice David Maraga has spoken against the creation of an independent office of the Judiciary Ombudsman as proposed in the Building Bridges’ initiative (BBI).
The CJ who held his last presser Friday before proceeding on terminal leave in preparation for his retirement termed the proposal as a direct conflict and duplication of roles between the Ombudsman and the JSC.
Maraga recommends Ombudsman be appointed by Judicial Service Commission and not by the President as proposed in the BBI Bill.
“The risk of parallel complaints being instituted with the JSC as well as the Ombudsman and the possibility of different decisions being arrived at is real and may result in a constitutional quagmire,” he said.
He noted that there already exist other alternative channels such as the office of the Judiciary ombudsman and the Commission on Administration of Justice through which the public can voice complaints.
He recommended the existing Office of the Ombudsman be enhanced, strengthened and made accessible to all members of the public.
“It is for this reason that JSC recommends, among others, that the structure and functions of the Ombudsman, as proposed in the BBI report and the Constitution of Kenya (Amendment Bill) be abandoned and instead the Judiciary Ombudsman be appointed by the JSC with a mandate to conduct investigations and report to JSC, which will take appropriate action authorised by the Constitution” he observed.
The CJ welcomed recommendations that would safeguard judicial accountability and independence.
Maraga who retires today (Friday) after serving in the top judicial office since 2016 also took issue with the proposal that seeks to enhance the number of executive appointees in the JSC from four to five saying the move entrenched executive authority in the JSC and by extension in the Judiciary.
“The unusually heavy tilt towards Executive representation in the JSC compared to other Commissions has the potential danger of entrenching Executive authority in the JSC and by extension, in the Judiciary. This would be contrary to the letter and spirit of the 2010 Constitution as espoused in the final report of the Constitution of Kenya Review Commission and the Constitution of Kenya Review Act” he said.
He stated that the recommendation served to erode public confidence in a constitutional commission and that the Judiciary would automatically be seen as vulnerable to government pressures.
Maraga in his tenure has never shied away from defending the Judiciary’s autonomy to the extent of clashing with the Executive. He has on a number of occasions accused the executive arm of the government of frustrating and undermining judicial operations for his hard stance against alleged external interference.
The Judiciary ombudsman will be nominated by the President with the approval of the National Assembly. The tenure of the office holder will be five years.
Among the duties envisaged include receiving and conducting inquiries into complaints against judges, registrars, magistrates and other judicial officers and staff of the Judiciary.
The office will be tasked with engaging the public on the role and performance of the Judiciary and also improve the transparency and accountability of the courts.