JUDGES AND MAGISTRATES LOBBY WANT CJ’S POWERS CLIPPED.

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Chief Justice David Maraga who judges and Magistrate Association is challenging his powers to interdict Magistrate, Registrar among other judicial officers.

BY SAM ALFAN.

Kenya Judges and Magistrate Association( KMJA) have moved to court challenging powers by chief Justice David Maraga to interdict magistrates and other judicial officers

The association through lawyer Danstan Omari wants a declaration that the Judicial Service Commission(JSC) through its secretariat or a subcommittee be the only body obligated by law to appoint, receive complaints against judicial officers, investigate and remove from office or otherwise disciple registrars, magistrates, other judicial officers and other staff of the Judiciary.

Under certificate of urgency, KMJA impugns that 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 the Petitioner without reference to the Judicial Service Commission.

KMJA is also seeking declaration be issued directing that the delegation of powers to the chief Justice Maraga to interdict, suspend and reprimand is inconsistent with Article 172 of the Constitution as read together with Section 14,20 and 32 of the Judicial Service Act,2011.

Further, the association also wants declaration issued that the unilateral issuance of letters of interdiction, suspension or reprimand by the Chief Justice in the absence of the participation of the Commission offends Article 172 of the Constitution and threatens the rights of the members of the Petitioner’s Association, to wit article 27(1) of the Constitution, to equal protection and equal benefit of the law.

The Judicial officers body further wants court to make a declaration that paragraph 16 and 17 of the Third Schedule of the Judicial Service Act,2011 is unconstitutional and inconsistent with Article 47 and 50(2) (e) for being vague and threatening members of the Petitioner’s rights to a speedy disciplinary proceedings with time specifications.

They also urge that Paragraph 16 of the third Schedule provides that, Interdiction (1) If in any case the Chief Justice is satisfied that the public interest requires that an officer should cease forthwith to exercise the powers and functions of their office, the Chief Justice may interdict the officer from the exercise of those powers and functions, provided proceedings which may lead to their dismissal are being taken or are about to be taken or that criminal proceedings are being instituted against them.

“Without prejudice to the orders sought above, a declaration is hereby made that the suspension of the members of the Petitioner as per paragraph 16 of the Third Schedule on a nil salary is inhumane, indignifying and is hostile and in contravention to article 25(c),28 and 50 of the Constitution thus null and void”, adds the association.

They also wants a declaration that the indefinite and unrestricted periods of interdiction or suspensions as per paragraph 15 and 16 of the Third Schedule of the Judicial Service Act,2011 is in flagrant violation to article 25(c),28 and 50 of the Constitution be declared null and void.

The association claim so far, the Chief Justice has suspended and interdicted a number of their members which acts the Petitioner reasonably believes to have been exercised unconstitutionally and in flagrant violation of the rule of law.

The latest suspension was against Kiambu Magistrate Patrick Khaemba who issued Kiambu Governor Waititu with anticipatory bail pending probe over allegations of graft.

However Employment and Relations court has reinstated former Milimani Chief Magistrate Daniel Ochenja who was suspended by former chief justice Willy Mutunga five years ago.

” If this court does not move with speed, there is a risk that the Chief Justice will proceed to invoke the impugned provisions to unilaterally reprimand members of the Petitioner without regard to the Constitutional safeguards”, claim KMJA.

They argued that if the court does not decide the matter with utmost urgency, the issues that present themselves for determination, then the members of the Petitioner will be denied the equal protection of law and the benefit of law that is not only concise but devoid of vagueness and error.

KMJA claims that there is a risk that the Chief Justice will continue to unilaterally invoke the impugned paragraphs of the Third schedule to interdict, suspend and/or reprimand members of the Petitioner without regard to the Constitutional safeguards.

Justice Weldon Korir certified the matter urgent and directed KMJA to serve Chief Justice, Judicial Service Commission and attorney general and appear before Justice Joseph Makau on July 30 for directions.

KHAEMBA STILL A JUDICIAL OFFICER, COURT RULES. https://nairobitimez.co.ke/2019/06/19/khaemba-still-a-judicial-officer-court-rules/ via @Nairobi Times

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