BY SAM ALFAN.
A dispute filed by the Kenya Judges and Magistrate Association (KMJA) challenging powers by chief Justice David Maraga to interdict magistrates and other judicial officers will now be heard by the Employment and Labor Relations court.
Justice James Makau ordered the matter to be placed before the presiding judge of the ELRC, Justice Maureen Onyango for further directions.
This was after Attorney General argued that the High Court does not have jurisdiction to hear the matter. The A-G said the matter was between employer and employees and should be heard by the right court.
KMJA lawyer Danstan Omari told the Judge that they were okay with any court hearing the case but sought for conservatory orders arguing that his clients were apprehensive if the matter proceeds without orders, some might be interdicted or suspended.
“My clients are apprehensive if this matter delays without a conservatory order, they might all be suspended, disciplined or interdicted before it is concluded,” Omari told the court.
Omari told the court that the conservatory orders would bring sanity and end fear and anxiety all the way from the resident magistrate to the Supreme Court.
The lawyer added that the issue of interdiction without pay for the members of the association raised a serious fundamental questions that touches on constitutionality.
He argued Chief Justice has been granted unilateral powers to suspend and interdict judicial officers without disciplinary or a fair process.
Omari added that JSC Act has donated powers to discipline, to interdict, suspend and reprimand to an individual contrary to section 14 of JSC Act which contemplate that the power can only be delegated to a subcommittee “before you is a question whether the CJ is a subcommittee or individual”.
Section 15(1) of JSC Act has delegated to the chief justices power to interdict , power to suspend, power to administer a severe reprimand or a reprimand and officer. The section further states that the chief justice when exercising the powers delegated by this schedule shall act in accordance with the provisions of this schedule and in accordance with any other appropriate regulations which may be in force.
The documents also indicates that where disciplinary or criminal proceedings have been taken or instituted against an officer under interdiction and such officer is neither dismissed nor otherwise punished under this schedule, the whole of any salary withheld under subparagraph (2) shall be restored to them upon upon termination of such proceedings .
Employment Court presiding judge placed the file before justice Radido on August 14 for the parties to argue on whether the matter needs to be referred to chief justice David Maraga to constitute a three bench judge.
The judicial officers association 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.
They filed the case under certificate of urgency, arguing 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.
Through lawyer Danstan Omari , the judicial officers 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.
They 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 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.