, NAIROBI, Kenya Jul 30 – High Court judge Justice James Makau has referred a petition by the Magistrates and Judges Association to the employment and Labour Relations Court for hearing determination (MJA).
In the petition, the association is asking the court to suspend sections of the Judicial Service Act that gives Chief Justice David Maraga powers to interdict and suspend a judicial officer.
It further said JSC developed rules 15, 16 and 17 of the Third Schedule to the Judicial Service Act, which Parliament approved.
The rules delegate the power to interdict and suspend a judicial officer or staff to the CJ.
Justice James Makau said that matter is best suited to be heard at the Labour Court.
Association lawyer Duntsan Omari said such powers ordinarily should lie in the Judicial Service Commission.
“We dispute the provisions of the Judicial Service Act 2011 to the extent that they unreasonably and unconstitutionally empower the Chief Justice to interdict, suspend and reprimand members of our association without reference to the Judicial Service Commission,” read court documents.
Omari says if the High Court does not move with speed, there is a risk the Chief Justice will proceed to invoke the impugned provisions to unilaterally reprimand members of the association without regard to constitutional safeguards.
Omari said the contested provisions of the Third Schedule have unconstitutionally donated so much powers to the Chief Justice.
He said the same paragraphs have denied any reasonable person the power to distinguish between the office of the CJ and that of JSC.
“The Chief Justice has suspended and interdicted a number of the association’s members which acts we reasonably believe to have been exercised unconstitutionally and in open violation of the rule of law,” says Omari.
The association has sued the JSC, Attorney General and the CJ seeking the court to declare that the JSC secretariat or a subcommittee is the only body obligated by law to appoint, receive complaints against, investigate and remove from office or otherwise disciple registrars, magistrates, other judicial officers and staff of the Judiciary.
Also sought is a declaration that the unilateral issuance of letters of interdiction, suspension or reprimand by the CJ in the absence of the participation of the commission offends Article 172 of the Constitution.
Maraga is the Chairperson of the JSC.
The association said it believes that to remove conflict of interest, assignment of such nature ought to be vested in an independent committee and not an individual who presides over the same body which has power to punish.
The file be placed before the presiding judge at Labour on July 31, for directions.