The Nairobi Law Courts/FILE
Secretary General Francis Atwoli said that an advert by the JSC seeking to recruit 15 judges in the Employment and Labour Relations Court had a negative impact on the Industrial Court as it seemed to imply that the serving judges had been unlawfully dismissed from office.
Through a statement, Atwoli said that the terms and conditions of the Industrial Court Judges were similar to those of High Court Judges and could not be altered without following due process.
“Their removal from office can only be effected pursuant to the adverse findings of a tribunal created to probe into any allegations of misconduct against them. There are no such findings on record,” he stressed.
“The JSC advert suggests that the commission has not taken account of this fact and is bent on removing the current Industrial Court judges from office illegally,” he argued.
Atwoli added that the advert was also illegal as it made reference to a non-existing court. He noted that the advert called for posts to the Employment and Labour Relations Court even though Parliament ruled out the title and instead chose to retain the title Industrial Court.
He further accused the JSC of undermining Parliament’s decision noting that the title could only be changed through an amendment of Industrial Court Act, 2011.
“The advert is a direct challenge to the authority of Parliament and the commission is by implication circumventing the decisions, if not, usurping the powers of Parliament,” he said.
“The upshot is that the entity or institution for which the Judicial Service Commission is advertising does not exist in law,” he argued.
He also challenged the JSC, which has been questioning the legality of a Section of the Industrial Court Act, to seek guidance from the Constitutional Court so as to get a proper way forward.
Atwoli accused the JSC of advertising for the posts currently performed by Judges of the Industrial Court without consulting them, as required by the law.
“What the Judicial Service Commission is doing or intends to do is contrary to and violates Article 47(2) of the Constitution,” he argued.
He further noted that the transitional clauses under Section 31 of the Sixth Schedule of the Constitution as well as Section 32 of the Industrial Court Act were meant to preserve the Court and avoid disrupting ongoing proceedings.
“The actions of the Judicial Service Commission as it is now, have only served to demoralize the Judges and the staff of the Industrial Court of Kenya beyond description,” he argued.
He also maintained that the Judges of the Industrial Court could not be removed from office without amending or deleting Section 32 of the Court’s Act. Atwoli also accused the JSC of violating the Judges’ rights.
Section 32 of the Act states that a person who occupied a position in the Industrial Court, at the time when the Act was being enacted, shall be deemed to have been appointed under the Act for the remainder of his or her term.
“The law requires that an employee must be given a hearing before termination of contract and the employees of the Industrial Court cannot be deprived of this right as they have not been given a hearing at all by the Judicial Service Commission,” he pointed out.
The JSC however maintains that the judges serving in the Industrial Court are in office illegally as they have not been vetted and that the law creating the court is unconstitutional.
He also warned the JSC against using the constitutional implementation process to undermine the Judges’ rights saying the only office holders whose terms were terminated by the Constitution were the sitting Attorney General, the Chief Justice, the Auditor General and Controller of Budget.
“The Constitutional implementation process cannot be used to deny people their fundamental rights and their livelihood,” he insisted.
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