Guidelines for considering matters concerning disciplinary proceedings before the Judicial Service Commission.

Brief facts

On September 10, 2013, the 1^st respondent (the Judicial Service Commission (JSC)) wrote to the appellant inviting her to respond in writing, to allegations about procurement, employment, administration, finance, and corporate governance within 21 working days. The appellant responded to the allegations through an interim and final report. JSC then scheduled proceedings for hearing on October 16, 2013, at which hearing the appellant raised objections based on impartiality, bias, and JSCs jurisdiction to institute proceedings against her. JSC overruled the objections and set the proceedings for hearing.

The appellant's effort to have the matter adjourned on that date to allow her to further prepare her defense and call witnesses bore no fruit. JSC, vide its letter dated October 18, 2013, resolved to terminate the appellants appointment, and removed her from office as the Chief Registrar of the Judiciary. In that letter, JSC stated that following the disciplinary proceedings initiated by itself as per the allegations set out in its letter dated September 10, 2013, it was satisfied that the requirements set out under section 12(1)(b), (c), (d), (f) and (g) of the Judicial Service Act (the Act) had been met.

Aggrieved, the appellant filed a petition at the High Court, which was later transferred to the Industrial Court, claiming that JSC in terminating her employment, violated her constitutional rights to fair trial; fair administrative action; public hearing; presumption of innocence; to be informed of charges in sufficient detail and to have adequate time to prepare her defense; to be heard by an impartial tribunal; due process of the law; access to information; and human dignity. The appellant also pleaded that in reaching its decision, JSC exercised powers it did not have.

The Industrial Court issued an order of certiorari quashing the letter of removal dated October 18, 2013, thereby quashing the proceedings of even date; declared that JSC violated the appellants rights under articles 27(1), 35(1) (b), 47(1) and (2), 50(1) and (2) and 236(b) of the Constitution of Kenya, 2010 (Constitution). Aggrieved by the judgment of the Industrial Court, JSC filed an appeal at the Court of Appeal. The Court of Appeal unanimously allowed the appeal, and set aside the judgment of the Industrial Court and all consequential orders. Dissatisfied with that judgment, the appellant filed the instant appeal presumably under article 163(4)(a) of the Constitution.

Issues

1. What were the guidelines to assist courts in considering matters concerning disciplinary proceedings before the Judicial Service Commission? 
2. What were the requirements to be met for one to appeal to the Supreme Court as of right in a matter involving the interpretation and application of the Constitution?
3. Whether a person against whom an administrative action was being taken had an automatic right to be given written reasons for the action. 
4. Who bore the burden of proof to demonstrate the effect of an administrative action?
5. Whether section 23 of the Third Schedule to the Judicial Service Act was unconstitutional for limiting the right of access to information.
6. Whether refusal to give an employee reason(s) for his/her removal from office was a violation of the right to fair administrative action. 
7. What was the nature of the right to fair hearing and the right to fair trial under articles 50(1) and 50(2) of the Constitution? 
8. Whether it was mandatory for disciplinary proceedings against the Chief Registrar of the Judiciary to be preceded by an investigative process. 
9. Whether denial of a public hearing in a disciplinary process before the Judicial Service Commission without justifiable reasons was a violation of the right to fair administrative action. 

Relevant provisions of the law

Constitution of Kenya, 2010

Article 24 - Limitation of rights and fundamental freedoms

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

1. the nature of the right or fundamental freedom;
2. the importance of the purpose of the limitation;
3. the nature and extent of the limitation;
4. the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
5. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2) Despite clause (1), a provision in legislation limiting a right or  fundamental freedom

1. in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
2. shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
3. shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

Article 163 - Supreme Court

(4) Appeals shall lie from the Court of Appeal to the Supreme Court

1. As of right in any case involving the interpretation or application of this Constitution; and
2. In any other case in which the Supreme Court, or Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5)

Judicial Service Act, 2011

Third Schedule

Section 23 - Copies of proceedings

1. An officer in respect of whom disciplinary proceedings are to be held under this Part shall be entitled to receive a free copy of any documentary evidence relied on for the purpose of the proceedings, or to be allowed access to it.
2. The officer may also be given a copy of the evidence (including documents tendered in evidence) after the proceedings are closed, on payment of five shillings per page of each document tendered in evidence:

Provided that they shall not be entitled to copies of office orders, minutes, reports or recorded reasons for decisions.

Held

1. The Supreme Courts appellate jurisdiction was set out under article 163(4) of the Constitution. Section 15(1) of the Supreme Court Act provided that appeals to the court would be heard only with the leave of the court. Section 15(2) specified that section 15(1) would not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution. An appeal had to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant had to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party had to be faulting the Court of Appeal based on such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under article 163(4)(a).

2. The test to evaluate the jurisdictional standing of the court in handling the appeal was whether the appeal raised a question of constitutional interpretation or application and whether the same had been canvassed in the superior courts and had progressed through the normal appellate mechanism so as to reach the court by way of an appeal as contemplated under article 163(4)(a) of the Constitution. 

3. A perusal of the record (volume iv of the record of appeal age 1919-1923) indicated that the High Court interpreted and applied articles 161, 226(2) 227, and 172(1) (c) of the Constitution to arrive at the conclusion that JSC had jurisdiction to institute disciplinary proceedings against the appellant. On page 1953 Volume IV of the record of appeal, the High Court concluded that JSC not only acted ultra vires the Act and the Regulations thereunder but also violated the constitutional rights of the appellant under articles 27(1), 35(1)(b), 47(1) and (2), 50(1) and (2) and 236(b) of the Constitution.

4. At the Court of Appeal, from the record (volume v at pages 2127 -2135), the Court of Appeal interpreted and applied several articles of the Constitution such as article 164(3)(b), 162(2)(a), 23(1) and (3), 20(3), 165(3)(b) to arrive to the conclusion that the Industrial Court and the appellate court were conferred with the jurisdiction to determine the matter. The court also interrogated articles 172(1)(c), 259(11) and 252 to decide that JSC had jurisdiction to initiate proceedings against the appellant suo moto without any recommendations or report from any external oversight bodies. Further, the Court of Appeal interrogated articles 27(1), 35(1)(b), 47(1) and 47(2), 50(1) and 50(2) and 236(b) of the Constitution to find that the High Court erred in its finding regarding the violation of the constitutional rights of the appellant. The appeal fell within the realm of article 163(4)(a) of the Constitution and was properly before the court.

5. The Fair Administrative Act No. 4 of 2015 was assented to on May 27, 2015, and came into force on June 17, 2015, almost 2 years after the cause of action. Therefore, the courts finding was premised on the applicable law as at the time the cause of action arose. Article 47 of the Constitution guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair. If a right or fundamental freedom of a person had been or was likely to be adversely affected by administrative action, the person had the right to be given written reasons for the action.

6. Article 236(b) of the Constitution provided that a public officer would not be dismissed, removed from office, demoted in rank, or otherwise subjected to disciplinary action without due process. Article 240 of the Constitution defined a public officer as any State officer; or any person, other than a State Officer, who held a public office. From the list provided under article 240, the appellant was not a State officer.

7. A public office was defined under article 240 of the Constitution to mean an office in the National Government, a county government, or the public service, if the remuneration and benefits of the office were payable directly from the consolidated fund or directly out of money provided by Parliament. Although article 236(b) of the Constitution was pleaded at the Industrial Court, the same was not applicable either to the appellant or to JSC.

8. Section 12(2) of the Act provided that before the removal of the Chief Registrar under section 12(1), the Chief Registrar was to be informed of the case against him or her in writing and was to be given reasonable time to defend himself or herself against any of the grounds cited for the intended removal. From the record of appeal, the appellant was duly informed of the case against her.

9. In usual judicial proceedings, the reasonable timeline for filling a defense in courts was 14 days unless time was enlarged by a court. The appellant was accorded a period of 39 days to respond to her claim which was reasonable.

10. Under article 47 of the Constitution, a person against whom an administrative action was being taken had a right to be given written reasons for the action if a right or fundamental freedom of that person had been or was likely to be adversely affected by an administrative action. The if in clause 2 of article 47 implied that giving written reasons for an administrative action was not an automatic right, it had to be demonstrated that a person had been or was likely to be affected by an administrative action.

11. The burden to demonstrate the effect of an administrative action lay with the person against whom the action had been taken, and in the instant case, it was the appellant. The appellant discharged that burden vide a letter from her advocates asking for among other things, reasons for the appellants removal. The letter further indicated that the demand was made pursuant to articles 22, 35, 48, 73 and 159 of the Constitution. 

12. The JNR v Judicial Service Commission, Petition 92 of 2019 [2019] eKLR) (JNR case) could be distinguished from the instant case, in that, some records in the JNR case were supplied by JSC to the petitioner after the court had given directions unlike in the instant case where there were no such orders. Furthermore, the court found that the right to access to information could be restricted in terms of legislation, and that apart from setting out the impugned regulation, the petitioner did not outline how the regulation was inconsistent with the provisions cited. Therefore, the circumstances in the JNR case were not applicable in the instant case.

13. In Bildad Rogoncho Kamwele v Judicial Service Commission, Petition 103 of 2019 [2020] eKLR (Bildad Rogoncho case), the court held that the finding of the court in Simon Rotich Ruto v Judicial Service Commission & another [2019] which declared the provisions of regulation 23 of the Third Schedule to the Act unconstitutional did not extend to the provisions of section 6(h) and (i) of the Access to Information Act which limited the right to access of information under article 35 of the Constitution. The Bildad Rogoncho case was distinguishable from the appellants case because in that case, the court did not dispute the declaration of section 23 of the Third Schedule as unconstitutional, but stated that notwithstanding the declaration, the petitioners right to access to information was limited under section 6(h) and 6(i) of the Access to Information Act. The Access to Information Act came into force on September 21, 2016, way after the cause of action in the instant case. That authority was inapplicable.

14. The courts below had made contradictory findings on the constitutionality of section 23 of the Third Schedule to the Judicial Service Act. The instant court could exercise its jurisdiction to clarify uncertainty in the law arising from contradictory precedents of the Court of Appeal by either resolving the uncertainty, as it could determine, or referring the matter to the Court of Appeal for its determination. Even though the instant matter was not filed under article 163(4)(b) of the Constitution, it was necessary for the court to settle, with finality, the issue as to whether section 23 of the Third Schedule was constitutional.

15. Any limitation of the right to access to information under article 35 of the Constitution could only be done by legislation under specific prescribed criteria. The impugned section 23 was subsidiary legislation found in the Third Schedule of the Act which was enacted in 2011 (after the effective date). The Third Schedule was premised on section 32 of the Act which made provisions for appointment, discipline and removal of judicial officers and staff. Nowhere in the parent Act, and in particular section 32, was it specifically expressed that there was an intention to limit the right to information of an officer in respect of whom disciplinary proceedings were to be held. Neither, was there an explanation of the nature and extent of the limitation.

16. It was not the intention of the drafters of the Constitution that a vague provision in a schedule, such as the one in section 23 of the Third Schedule to the Act, could limit a constitutional right or fundamental freedom, in a manner that was reasonable and justifiable in an open democratic society. In view of the set criteria under article 24(2) of the Constitution, section 23 on its own did not qualify as a legal basis for the purpose of justifying a limitation of a right or fundamental freedom under article 24.

17. JSCs reliance of the proviso in section 23 of the Third Schedule to the Act to limit the appellants right to access to information guaranteed in the Constitution was unfounded. JSCs refusal prejudiced the appellant who could not adequately challenge its decision to remove her from office. Section 23 of the Third Schedule was therefore unconstitutional. 

18. The instant court faulted the Court of Appeals finding that it would have been impractical for JSC to give specific reasons regarding the 87 allegations in the termination letter and that a press statement issued by JSC on October 19, 2013 gave detailed reasons for the termination of the appellants employment. The least that JSC would have done was to enclose its reasons in the removal letter, the same way it enclosed the allegations against the appellant in its letter dated September 10, 2013. Therefore, refusal to give the appellant reason(s) for her removal, was without justification. The appellants right to fair administrative action under article 47 of the Constitution, and the right to access information were violated. 

19. Article 50(1) of the Constitution referred to the right to a fair hearing for all persons, while article 50(2) accorded all accused persons the right to a fair trial. Article 25(c) of the Constitution listed the right to a fair trial as a non-derogable fundamental right and freedom that could not be limited. Often the terms fair hearing and fair trial were used interchangeably, sometimes to define the same concept, and other times to connote a minor difference.

20. Although the right to a fair trial was encompassed in the right to a fair hearing in the Constitution, a literal construction of article 50(1) and 50(2) of the Constitution could be misconstrued in some quarters to mean that article 50(1) dealt with the right to fair hearing in any disputes including those of a civil, criminal or quasi criminal nature whereas article 50(2) was limited to accused persons thereby arguing that the protection of such right only related to criminal matters. That was not an acceptable interpretation or construction within the parameters of articles 19 and 20 of the Constitution on the Bill of Rights, which called for an expansive and inclusive construction to give a right its full effect. 

21. Fair hearing in principle incorporated the rules of natural justice, which included the concept of audi alteram partem(hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Although JSCs letter of September 10, 2013 referred to an earlier letter of August 20, 2013, that letter was not part of the record for unknown reasons. The letter of August 20, 2013 would have been useful to enable the court to discern whether the process was without notice and turned from investigatory to disciplinary. Disciplinary proceedings against the Chief Registrar were not restricted to financial mismanagement and hence, need not be preceded by an investigatory process. JSC had jurisdiction to initiate disciplinary proceedings against the appellant suo moto without any recommendation or report from any external oversight bodies. 

22. The right to a public hearing was provided for under article 50(1) of the Constitution. From the wording of article 50(1), the right to a public hearing was only automatic when the matter being heard was before a court, otherwise, any other hearing be it before a tribunal or body, could only be allowed, if appropriate. That being a discretionary power, it could only be exercised by the body or tribunal conducting the proceedings.

23. The reasons given by the Court of Appeal to uphold JSCs refusal to accord the appellant a public hearing were not the same as those given by JSC in its ruling of October 16, 2013. If those were JSCs reasons for denying the appellant a public hearing, they ought to have been reflected in JSCs ruling. Consequently, the court faulted the Court of Appeal for arriving at that conclusion. Further, the JSCs reasons for denying a public hearing on the basis that it was an internal process, that was its common practice in other disciplinary matters was vague, and not sufficient basis to deny a specific request. Without justifiable reasons for the refusal, the appellants right to fair administrative action through public hearing under article 47 of the Constitution was violated. 

24. Without the Hansard Reports and minutes of JSC for October 18, 2013 on record, the court was unable to confirm if the request to call witnesses was made. The court was also not able to authenticate the appellants allegations that JSC in violating her right to a fair hearing, did not consider the reports and written submissions in reaching the final decision. Even if the court presumed that the issue of the appellant requesting for an adjournment on October 18, 2013 to call witnesses was raised, as it had not been controverted by JSC in its submissions, the court was not able to conclusively determine the same without the copies of those proceedings. In the absence of JSCs proceedings of October 18, 2013, it would have been impossible even for the Court of Appeal to conclusively determine the issue, and therefore the instant court faulted its finding on the same.

25. The tribunal should not have been reconstituted on account of the alleged perceived bias by the named commissioners and the chairman. Counsel for the appellant admitted to JSC by stating that he could not authenticate the emails upon which the allegations of bias were made. In fact, counsel stated that the same could be true or fake. Without authenticating the emails, it was impossible to conclude that there was actual or reasonable apprehension of bias. The appellants right to a fair hearing regarding that aspect was not violated.

26. Article 24 of the Constitution was permissive on limitation of rights and fundamental freedoms. The limitation was permissible on two conditions;

1. that a right or fundamental freedom in the Bill of Rights should only be limited by law; and
2. to the extent only that the limitation was reasonable and justifiable in an open and democratic society. Even where the right or fundamental freedom had been limited by law, the yardstick for determining the reasonableness and justifiability of the limitation was whether such limitation was acceptable in an open and democratic society.

27. The court in considering the limitation under article 24(1) of the Constitution had to bear in mind that there was no superior right and take into consideration factors such as the nature of the right to be limited, the importance and purpose of the limitation, the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by one individual did not prejudice the rights of others. That called for balancing of rights under the principle of proportionality because rights had equal value and therefore maintained the equality of rights.

28. JSC did not state the importance or purpose for denying the appellant access to the documents requested through her advocate vide a letter dated October 25, 2013. Without the reasons, the appellant could not adequately challenge the decision to remove her from office in a court of law. The burden to justify a limitation of a fundamental right or freedom lay with the person limiting the same. The appellant specified the documents she needed, and the date of the documents. There was no merit in the Court of Appeals finding that the appellants request for documents vide a letter dated October 25, 2013, was vague. JSCs limitation of the appellants right of information under article 35 was unreasonable and unjustifiable.

29. The following guiding principles ought to assist the courts when considering a matter concerning disciplinary proceedings before JSC: 

1. The JSC should comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act.
2. JSC should always give an employee reasonable time to defend himself or herself.
3. An employee should be informed of the basis of the complaint(s) or who his or her accusers are to enable the employee to defend themselves.
4. JSC should furnish an employee with details of allegations against him or her.
5. JSC had to always be clear from the start whether the administrative action against an employee was of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee had to be accorded a fresh notice to prepare his/her defence.
6. An employee should be accorded a public hearing if he/she desired to have one. A decision to decline such a request had to be accompanied with reasons which would be given to the employee.
7. An employee should be given detailed reasons for any administrative action/decision by JSC.
8. An employee should access and receive any relevant documents relating to his/her matter. Any decision to the contrary had to be accompanied by a written reason.
9. An employee should be accorded opportunity to attend proceedings, in person or in the company of an expert of his/her choice.
10. An employee undergoing disciplinary proceedings should be given an opportunity to call witnesses, be heard; cross-examine witnesses; and request for an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing.

30. In order to achieve compliance with the guidelines, the JSC was directed to publish and publicize procedures for all its disciplinary and investigative processes, and that such publication be undertaken and effected through the Kenya Gazette, within 90 days from the date of the judgment.

31. The court took judicial notice that the issue of relief was not substantively addressed by any of the superior courts below. A matter coming on appeal to the court had to have first been the subject of litigation before the High Court and risen through the judicial hierarchy on appeal.