Embattled Deputy Chief Justice Philomena Mwilu has pleaded to have all the petitions seeking her removal suspended to await the outcome of the appeal before a higher court.
Justice Mwilu also argues that the four separate petitions lodged before the Judicial Service Commission by the DPP and three other petitioners are seeking to rely on illegally obtained evidence whose approach had already been condemned by the high court, which stopped her criminal prosecution.
EVIDENCE
The High Court on May 31 stopped her prosecution, stating that the evidence underpinning the intended criminal prosecution had been illegally obtained by the Director of Criminal Investigations (DCI), and in a manner that is detrimental to the administration of justice.
One of the orders she is seeking before the Court of Appeal is, “a declaration that no proceedings of any nature in any forum including the JSC can be instituted, continued, or maintained on the basis of the illegally obtained evidence.”
The four petitions are based on the same charges that were registered before the Chief Magistrate’s Court on August 28, last year. She had challenged the charges and the entire criminal prosecution at the High Court, before she could be called upon to take plea.
“The DPP and the other three petitioners are clearly abusing the system of administration of justice by seeking a different outcome before the JSC, having failed to achieve the same before the Chief Magistrate Court and the High Court,” she said.
Three of the petitions before the JSC for her removal were filed subsequent to the determination of the high court and are premised solely on matters that were the subject of the High Court’s determination.
DPP Noordin Haji filed an appeal on June 3, where he is seeking to overturn the judgment of the High Court.
Among his grounds of appeal are that the High Court erred in law by holding that the charge of abuse of office ought to have been referred to the JSC in the first instance without any legal or factual foundation for such a holding.
Further, that the High Court, having found that gross misconduct could constitute a ground for removal of a judge from office, and that such conduct could in some instances be criminal in nature, erred in law and fact in holding that such misconduct must first be referred to and determined by the JSC.
Meanwhile, Justice Mwilu also filed her appeal papers on June 14, against part of the judgment of the High Court.
“As a member of the JSC, I am familiar with its processes and rules of procedure. It is the custom, rule and practice of this Commission not to consider any matter that is the subject of ongoing litigation or consideration before the courts,” Justice Mwilu.
Adding that, given these facts, it is evident that the substance of the four petitions for her removal before the Commission premature.
SUFFICIENT
“Based on its own rules, custom, practice and procedure, the Commission ought not to deliberate upon the four petitions for my removal and on this basis, the directive that I respond to the same within 21 days, would subject me to prejudice and double jeopardy,” adds Justice Mwilu.
“There is therefore, sufficient reasons as to why the four petitions should not be entertained at all.”
The judge is equally curious that the Court of Appeal is fast tracking the hearing of her appeal, but not doing the same with the appeal filed by DPP.
“It cannot be lost to anyone familiar with the practice of the Court of Appeal and knowledgeable on the status of appeals filed before that court. My appeal is being fast tracked. The question is, by who and to what end? Ordinarily, the two appeals would have been listed for directions together, in accordance with the rules and practice directions of the court of appeal,” Justice Mwilu.
CROSS-PURPOSE
Further, that the directive by JSC that she responds to the four petitions when the issues they raise have already been determined by the high court, and are currently pending before the Court of Appeal, is highly prejudicial and in contravention of her rights and fundamental freedoms.
“The DPP’s action and intended outcome in particular, undermines the administration of justice, as the Commission cannot be used as an appellate forum from decisions of courts,” justice Mwilu.
She said the JSC is part of the Judiciary, the legal system for administration of justice, and exercises judicial authority in the same vein as the courts do.
It is also comprised the judges and judicial officers. It cannot therefore, be seen to be acting at cross-purpose with the courts and outside of the legal system that it is part of and whose independence, integrity, efficiency, effectiveness and accountability it is created to promote and protect.