Article 171 of the Kenyan Constitution establishes the Judicial Service Commission. Article 172 of the Constitution stipulates the functions of the Judicial Service Commission in Kenya.
The Judicial Service Act contains more information about the Commission.
The Judicial Service Commission in Kenya should consist of the following members-
- the Chief Justice, who should be the chairperson of the Commission;
- one Supreme Court judge elected by the judges of the Supreme Court;
- one Court of Appeal judge elected by the judges of the Court of Appeal;
- one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
- the Attorney-General;
- two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
- one person nominated by the Public Service Commission; and
- one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.
The Chief Registrar of the Judiciary is the Secretary to the Commission.
Members of the Commission, apart from the Chief Justice and the Attorney-General, should hold office, provided that they remain qualified, for a term of five years and are eligible to be nominated for one further term of five years.
The Judicial Service Commission should promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice and should-
- recommend to the President persons for appointment as judges;
- review and make recommendations on the conditions of service of-
- judges and judicial officers, other than their remuneration; and
- the staff of the Judiciary;
- appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament (the Judicial Service Act);
- prepare and implement programmes for the continuing education and training of judges and judicial officers; and
- advise the national government on improving the efficiency of the administration of justice.
Other functions of the Judicial Service Commission n Kenya can be found under Article 252 of the Constitution. The Commission-
- may conduct investigations on its own initiative or on a complaint made by a member of the public;
- has the powers necessary for conciliation, mediation and negotiation;
- should recruit its own staff; and
- may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by the Constitution.
In performing its functions, the Judicial Service Commission should be guided by the following-
- competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary; and
- the promotion of gender equality.
According to Article 253 of the Constitution, the Commission-
- is a body corporate with perpetual succession and a seal; and
- is capable of suing and being sued in its corporate name.
More powers of the Judicial Service Commission are in section 13 of the Judicial Service Act. The Commission should have the power to-
- purchase or otherwise acquire, hold, charge and dispose of movable or immovable property;
- borrow and lend money;
- enter into contracts;
- do or perform all such other things or acts necessary for the proper performance of its functions under the Constitution and the Act which may be lawfully done or performed by a body corporate.
The Commission also has the power to issue a summons to a witness to assist for the purposes of its investigations.
For more about the Judicial Service Commission in Kenya, see Part 3 of the Judicial Service Act.