Judicial Service Act

Section Interpretation Section In this Act, unless the context otherwise requires— “ Chairperson ” means the Chairperson of the Commission ; “ Commission ” means the Judicial Service Commission established by Article 146 of the Constitution ; “ Commissioner ” means a member of the Commission ; “ currency point ” has the value assigned to it in Schedule 1 to this Act; “ judicial officer ” has the meaning assigned to it in Article 151 of the Constitution ; “ Minister ” means the Minister responsible for justice; “ Public Service Commission ” means the Public Service Commission established by Article 165 of the Constitution ; “ Secretary ” means the Secretary to the Commission appointed under Article 146(8) of the Constitution .

Section Appointment of members of Commission Section The Chairperson and other members of the Judicial Service Commission shall be appointed by the President with the approval of Parliament. The Attorney General shall be an ex officio member of the Commission .

Section Members of Commission to relinquish particular offices Section A person holding any of the following offices shall relinquish that office on appointment as a member of the Commission — a member of Parliament; a member of a local government council; or a member of the executive of a political party or political organisation. Subject to subsection (1) , after the appointment of a person as commissioner, the offices specified in that subsection shall, for the purposes of Article 146(7)(b) of the Constitution , be taken to be offices likely to compromise the independence of the Commission.

Section Oaths of members of Commission Section Every member of the Commission shall, before assuming the functions of member of the Commission , take and subscribe— the official oath required under Schedule 1 of the Oaths Act ; and the oath specified in Part I of Schedule 2 to this Act.

Section Seal of Commission Section The Commission shall have a seal which shall be in such form as the Commission may determine and, subject to the provisions of any law, be applied in such circumstances as the Commission may determine.

Section Oath of Secretary and other staff Section The Secretary shall, before assuming the performance of his or her functions under this Act, take and subscribe the oath specified in Part II of Schedule 2 to this Act. Any other officer of the Commission may be directed by the Commission to take and subscribe the oath specified in Part II of Schedule 2 to this Act.

Section Immunity of members and staff of Commission Section A member of the Commission shall have similar protection and privilege in the case of any action or suit brought against him or her for any act or omission done in the execution of his or her duties as is given by law to the acts or words spoken by a judge of the High Court in the exercise of his or her judicial functions. An employee or other person performing any function of the Commission under the authority of the Commission shall not be personally liable to any civil proceedings for any act or omission done in good faith in the performance of those functions.

Section Funds and expenses of Commission Section The emoluments of members of the Commission and the other administrative expenses of the Commission shall be charged on the Consolidated Fund. Parliament shall ensure that adequate resources and facilities are provided to the Commission to enable it to perform its functions effectively. The Commission shall be a self-accounting institution and shall deal directly with the Ministry responsible for finance on matters relating to its finances. The funds of the Commission may also, with the approval of the Minister responsible for finance, include grants and donations to enable it to discharge its functions. All funds provided to the Commission under this section shall be administered and controlled by the Secretary who shall be the accounting officer in accordance with the Public Finance Management Act.

Section Functions of Commission Section Subject to the provisions of the Constitution , the Commission shall have the functions specified in Articles 147 and 148 of the Constitution .

Section Functions of Chairperson of Commission Section The Chairperson shall be the head of the Commission and shall be responsible for the administration of the Commission and shall monitor and supervise the work of the Secretary .

Section Secretary to Commission Section Subject to the powers of the Chairperson under section 7 and to the general control of the Commission, the Secretary shall be responsible for— There shall be a Secretary to the Commission who shall be appointed by the President on the advice of the Public Service Commission . The Secretary shall be a person qualified to be appointed a Permanent Secretary . The Secretary shall be appointed on such terms and conditions as are applicable to a Permanent Secretary . carrying out the policy decisions of the Commission , the day-to-day administration and management of the affairs of the Commission and the control of the other staff of the Commission ; arranging the business for and the recording and keeping of the minutes of all decisions and proceedings of the Commission at its meetings; and performing any other function assigned to him or her by the Commission . The Secretary is, unless in any particular case the Commission otherwise directs in writing, entitled to attend all meetings of the Commission but shall have no vote on any matter falling to be decided by the Commission at any such meeting.

Section Other staff of Commission Section The Commission shall have such other officers and employees as may be necessary for the discharge of its functions. The officers and employees referred to in subsection (1) shall be public officers.

Section Meetings and decisions of Commission Section The Chairperson shall preside at all meetings of the Commission , and in his or her absence, the Deputy Chairperson shall preside; and in the absence of both of them, the judge of the Supreme Court referred to in Article 146(2)(d) of the Constitution shall preside. The quorum at meetings of the Commission shall be six. Every decision of the Commission shall, so far as possible, be by consensus. Where there is no consensus, decisions shall be by a majority of all the members. In any vote under subsection (4) , each member of the Commission shall have one vote, and none shall have a second or casting vote. In any matter of discipline or a proposal to remove a judge or other judicial officer , the decision shall be carried by at least six members of the Commission at a meeting at which the Attorney General is present. Subject to the provisions of the Constitution , the Commission may act notwithstanding the absence of any member or any vacancy in the office of a member. The Commission may regulate its own procedure.

Section Decision by circulation of papers Section Except for matters of appointment, discipline, reviewing and making recommendations on the terms and conditions of service of judges and other judicial officers, or a proposal to remove a judge or any other judicial officer , decisions may be made by the Commission without a meeting, by circulation of the relevant papers among the members and the expression of their views in writing. Any member is entitled to require that a decision under subsection (1) shall be deferred until the subject matter has been considered at a meeting of the Commission.

Section Application of rules of natural justice Section In dealing with matters of discipline, and removal of a judicial officer , the Commission shall observe the rules of natural justice; and, in particular, the Commission shall ensure that an officer against whom disciplinary or removal proceedings are being taken is— informed about the particulars of the case against him or her; given the right to defend himself or herself and present his or her case at the meeting of the Commission or at any inquiry set up by the Commission for the purpose; where practicable, given the right to engage an advocate of his or her own choice; and told the reasons for the decision of the Commission .

Section Bias Section A judicial officer whose conduct is under consideration by the Commission in a disciplinary matter is entitled to object to the participation of a member of the Commission in the proceedings and decisions of the Commission on the ground of bias. Where an objection is raised under subsection (1) , the Commission shall inquire into and rule on the objection before proceeding further with consideration of the case of the judicial officer who raised the objection. If the objection is sustained by the Commission , the member against whom the objection was raised shall not take part in the proceedings relating to the judicial officer . The member of the Commission against whom objection is taken under this section is entitled to be heard at any meeting of the Commission where the objection is being considered, personally or by an advocate of his or her own choice, to defend himself or herself against the objection.

Section Privilege of communication Section Unless the Chairperson consents in writing to the production or disclosure, no person shall in any legal proceedings be permitted or compelled to produce or disclose any communication, written or oral, which has taken place between— the Commission or any member or officer of the Commission and the President, Vice President, a Minister , the Public Service Commission or any member or officer of it or a public officer; any member or officer of the Commission and the Chairperson ; or any members or officers of the Commission , in the exercise of or in connection with the exercise of the functions of the Commission .

Section Failure to appear or produce documents Section Any person, other than a person who is notified to appear before the Commission solely in connection with his or her application for appointment to the public service, who without reasonable cause fails to appear before the Commission when notified to do so, or who wilfully fails to produce any documents in his or her possession when requested to do so by the Commission , commits an offence and is liable, on conviction, to a fine not exceeding fifteen currency points or to imprisonment not exceeding six months, or both.

Section Immunities and privileges of witnesses Section A witness before the Commission shall have the same immunities and privileges as if he or she were a witness before the High Court.

Section Enforcement of attendance, etc. Section The Commission may require any person to attend and give evidence before it concerning any matter which it may properly consider in the exercise of its functions under the Constitution and this Act, and may require the production of any documents relating to any such matter by any person attending before it. The Commission may cause a witness to be examined on oath or affirmation which shall be administered by the Secretary or by any other person authorised by the Commission .

Section Attendance allowance Section A person summoned by and appearing before the Commission as a witness is entitled to be paid by way of reimbursement of his or her expenses such allowances as are payable to a witness appearing before the High Court in criminal proceedings. Any other person invited by the Commission to attend any meeting of the Commission to assist the Commission may be paid by the Commission such allowances as the Commission may consider reasonable.

Section Improper influence and false information Section Any person who, otherwise than in the course of his or her duty, directly or indirectly by himself or herself or by any other person in any manner, influences or attempts to influence any decision of the Commission commits an offence and is liable, on conviction, to a fine not exceeding thirty currency points or to imprisonment not exceeding twelve months, or both. Nothing in this subsection shall be taken to make unlawful the giving of a reference or testimonial to any applicant or candidate for any public office or the supplying of any information or assistance requested by the Commission . Any person who, in connection with the exercise by the Commission of its functions, wilfully gives to the Commission any information which he or she knows to be false or does not believe to be true, or which he or she knows to be false by reason of the omission of any material particular, commits an offence and is liable, on conviction, to a fine not exceeding thirty currency points or to imprisonment not exceeding twelve months, or both. For the purpose of this section, “ Commission ” means the Commission , any member of the Commission...

Section Improper disclosure Section Any member or officer of the Commission and any other person who, without the written permission of the Chairperson , knowingly publishes or discloses to any person otherwise than in the exercise of his or her official functions, the contents of any document, communication or information which has come to his or her notice in the course of his or her functions in relation to the Commission commits an offence and is liable, on conviction, to a fine not exceeding thirty currency points or to imprisonment not exceeding twelve months, or both. Any person who knows of any information which to his or her knowledge has been disclosed in contravention of subsection (1) , and who publishes or communicates it to any other person otherwise than for the purpose of any prosecution under this Act or in the course of his or her official duty, commits an offence and is liable, on conviction, to a fine not exceeding thirty currency points or to imprisonment not exceeding twelve months, or both.

Section Consent of Director of Public Prosecutions Section Prosecution for an offence under this Act shall not be instituted except with the consent of the Director of Public Prosecutions.

Section Legal proceedings Section Subsection (1) does not apply to— Subject to subsection (2) , no proceedings shall be brought in any court on the ground that any provision of this Act has not been complied with. criminal proceedings for an offence under this Act; proceedings for judicial review by the High Court on the ground of nullity of any proceedings or decision by the Commission or any person or authority under this Act.

Section Prescription of number of registrars under Article 145 of the Constitution Section The Chief Justice may, by statutory instrument, in consultation with the Commission , prescribe the number of registrars in the judiciary other than the chief registrar for the purpose of Article 145(1) of the Constitution .

Section Commission to designate other judicial officers Section The Commission may, by statutory instrument, in consultation with the Public Service Commission , designate the holder of any office, the functions of which are connected with a court as a judicial officer for the purposes of the definition of judicial officer under Article 151(c) of the Constitution .

Section Regulations Section Without prejudice to the general effect of subsection (1) , regulations may be made under it— The Commission may, by statutory instrument, make regulations in relation to the discharge of its functions under the Constitution and this Act. regulating the manner in which matters shall be referred to the Commission ; providing for and regulating the conduct of disciplinary proceedings by the Commission ; providing for the organisation of the work of the Commission and regulating the manner in which it shall exercise its functions; prescribing disciplinary penalties and awards; and requiring persons to attend before the Commission to answer questions relating to the exercise by the Commission of its functions.

Section Power to amend Schedule 1 Section The Minister may, by statutory instrument, with the approval of Cabinet, amend Schedule 1 to this Act.