Justice Said Chitembwe has moved to court to block Judicial Service Commission (JSC) from using video recordings, social media posts and phone call conversations linking him to bribery as a basis for his removal as a judge.
The High Court judge said the recordings former Nairobi governor Mike Sonko posted on social media, were obtained illegally without his knowledge and consent.
The Milimani-based judge says he is apprehensive that the JSC will rely on the recordings, yet Mr Sonko obtained them in contravention of the Constitution.
The recordings, which the ex-governor released, formed the basis of three petitions filed seeking for the removal of the judge, one of them initiated by the judges’ employer. There are four petitions before JSC seeking the removal of Justice Chitembwe.
“The petitioner is aggrieved that the petitions for his removal from office and the proceedings by the sixth respondent (JSC) under Article 168(1) & (2) of the Constitution are based on the petitioner’s private conversations obtained without his consent and in violation of his rights to privacy,” he said in a statement, adding that the proceedings are therefore on the basis of illegally obtained evidence.
The JSC has already written to Justice Chitembwe, giving him 14 days to respond to the allegations. He is required to appear before the Commission on December 14.
But the Judge has faulted the JSC for directing him to appear for the hearing of all the four petitions, on a single day and giving him 19 days to prepare his responses.
“The petitioner is aggrieved that the 6th respondent is conducting its proceedings in a manner that violates the petitioner’s constitutional rights to fair administrative Action,” he said.
In one of the petitions, the Judge is accused of advising Mr Sonko that the judgment, which upheld his removal as the Nairobi governor, should be set aside because there was coercion, bribery and fraud.
Justice Chitembwe was also accused of misconduct for discussing a matter pending before him, with third parties and rendering judgments based on other influences including bribery.
The JSC also summoned Sonko to appear before the commission and shed light on the recordings. “The attention of the JSC has been drawn to several video clips, social media posts, cell phone recordings released by you in which Hon Justice Said Juma Chitembwe’s conduct as a judge has been brought to question,” the letter to Mr Sonko reads.
Other than the JSC’s petition, Mr Francis Wambua has also lodged a petition before the JSC claiming the judge has involved himself in various acts of gross judicial misconduct, including discussing the merits of a matter pending in court, with third parties.
He says the judge lacks the integrity to continue holding office because he has breached the constitutional provisions on integrity and the judges’ code of conduct.
Judge Chitembwe and his High Court colleague Aggrey Muchelule were taken to custody in July but they were later released without charges.
Justice Chitembwe later admitted that he had about Sh770,000 in US currency with him when police officers raided his office and he intended to wire the money to his son’s school fees at the Edith Cowan University Perth Australia.