Judges, Magistrates drop application for bench in case challenging CJ’s role in interdictions

August 14, 2019 (2 weeks ago) 4:35 pm
Lady Justice Maureen Onyango (pictured), directed the Judicial Service Commission (JSC) and the Attorney General to file their responses to the petition within a period of 14 days ahead of a hearing on September 17.

, NAIROBI, Kenya, Aug 14 – The petition filed by the Magistrates and Judges Association (MJA) seeking to limit the powers of the Chief Justice will now be heard a single judge.

Parties to the suit on Wednesday agreed by mutual consent to abandon an application for a bench in a bid to have the matter expedited.

Consequently, Lady Justice Maureen Onyango, directed the Judicial Service Commission (JSC) and the Attorney General to file their responses to the petition within a period of 14 days ahead of a hearing on September 17.

Danstaun Omari, the lawyer appearing for MJA, told the court that application raises serious issues that need to be concluded expeditiously.

The petition was two weeks ago referred to the Employment and Labour Relation Court for hearing and determination by Justice James Makau.

MJA was seeking the suspension of sections of the Judicial Service Act that gives Chief Justice David Maraga powers to interdict and suspend a judicial officer.

Lawyer Omari said such powers are ordinarily vested with 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 presented by MJA.

Omari said 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 power to the Chief Justice.

He said the same paragraphs have denied any reasonable person to distinguish between the office of 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,” said Omari.

The association has sued JSC, the Attorney General and the CJ seeking to declare the JSC secretariat or a subcommittee as 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 without the participation of the JSC offends Article 172 of the Constitution (2010).

Maraga being the Chairperson of the JSC, MJA believes that to address conflict of interest, the interdiction of judicial officers should be handled by an independent committee and not an individual who presides over the JSC.

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