Chief Justice David Maraga has proposed that the Judiciary Ombudsman as stipulated in the BBI report be appointed by the Judicial Service Commission (JSC) instead of the President. CJ Maraga said the ombudsman, once appointed by the JSC, should have the mandate to conduct investigations and report to the JSC which will take appropriate action as authorized by the Constitution. The JSC proposal sets aside the BBI’s earlier proposed a structure which sought to give the President the responsibility of appointing the Judiciary Ombudsman prior to approval by legislators.
Speaking to the press on Friday, CJ Maraga said the office of the Ombudsman should also be enhanced and be made more accessible to the public. He said granting one more slot to the executive appointee in the Judiciary isn’t commendable, “The proposal seeks to enhance the number of executive appointees in the JSC from 4 to 5. The unusual 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 the Judiciary.” He said it will erode public confidence which wasn’t regarded as independent before 2010, and make it seem vulnerable to government pressure.
He further pointed out that the BBI proposal if effected will create a conflict and duplication of roles between the Ombudsman and the JSC, with a risk of parallel complaints being instituted with the two bodies, “The risk of parallel complaints being instituted with the JSC and the Ombudsman and the possibility of different decisions being arrived at is real and may result into a constitutional quagmire.”
However, the CJ said the JSC has made its position clear on the matter, given that the BBI secretariat said changes can’t be made on the report and they’ll send the officials their proposal, “If they ignore it the public already know the position of the Judiciary,” he affirmed.