The High Court has ruled that the withdrawal and disarming of security officers attached to a judge without prior consultation with the Judicial Service Commission (JSC) is unconstitutional and undermines judicial independence.
In a judgment delivered in a petition dated September 17, 2024, Justice Aburili declared that the actions of the Inspector General of Police and other respondents in withdrawing and disarming the personal security detail of Justice Lawrence Mugambi violated several provisions of the Constitution.
The court held that security assigned to judges is not merely a discretionary benefit that can be withdrawn at the will of the police service, noting that judicial security is closely linked to the independence of the judiciary. The judge observed that judges must be able to discharge their constitutional duties free from fear, intimidation, physical harm or executive reprisal.
The court noted that Justice Mugambi’s security was withdrawn shortly after he found the then Acting Inspector General of Police, Gilbert Masengeli, in contempt of court. Masengeli had been convicted of contempt on September 9, 2024, and sentenced to six months in prison on September 13, 2024, after failing to appear before the court to explain why he should not be held in contempt. According to the judgment, the judge’s security detail was subsequently disarmed and withdrawn over the immediate weekend without prior communication to the Judiciary Police Unit.
The police later explained that the officers had been recalled for a three-week VIP refresher training under the 2016 VIP policy. However, the court rejected the argument that the withdrawal could be treated as an ordinary operational decision, given the circumstances surrounding the timing of the withdrawal.
The court held that allowing the police to arbitrarily withdraw a judge’s security would expose the Judiciary to manipulation and intimidation by the Executive.
“Disarming or stripping a judge of police protection without alternative or equal security instantly exposes the judge to risk,” Justice Aburili stated, emphasizing that judicial security is intended to protect both the judge and the independence of the institution.
The court further ruled that any decision to alter or reduce the security profile of a judge or judicial officer must involve prior formal consultation with the Judicial Service Commission, the constitutional body mandated under Article 171 to oversee matters concerning the Judiciary. The court said such consultation was necessary to prevent police deployment powers from being used to undermine judicial independence.
The petition was therefore allowed, with the court declaring that the actions of the first and third respondents in disarming and withdrawing a judge’s personal security violated Articles 10, 19, 20, 21, 27, 47, 73, 159, 160, 244 and 245 of the Constitution. The court also declared the withdrawal and disarming of Justice Mugambi’s security unconstitutional and invalid under Article 2(4) of the Constitution.
