BY SAM ALFAN.
It is a big win for magistrate and other judicial officers after a judge ruled it is only the Judicial Service Commission that can receive complaints against and discipline them.
Employment and Labour Relations Court Judge Maureen Onyango further ruled that indefinite suspension of magistrate and judicial officials was wrong but should be for a specific period.
“I agree with the Petitioner that indefinite suspension or interdiction amounts to a violation of Article 25(a) and (c), Article 28 and Article 50. It is recommended that this is addressed administratively by the respondent by providing for the-duration of any suspension or interdiction, and for extension thereof with reasons on a case by case basis,” ruled the judge.
The decision is a big relief for judicial officers who feel that Chief Justice has been using his powers to punish them without affording them a hearing as required by the constitution.
Judicial officers who spoke to Nairobi TIMEZ on condition of anonymity, said they fail to understand why the CJ rushes to suspend or interdict them when a reprimand is an option.
In the decision, the court ruled that those on interdiction should be paid half their salary while those on suspension should be paid alimentary allowance.
Kenya Judges and Magistrate Association (KMJA) Secretary General Derrick Kuto welcomed the decision saying it forms a threshold for further engagement with JSC over the emotive issue of discipline.
“On behalf of KMJA, I welcome the decision by the High Court. The decision has restated the Constitutional rights of our colleagues. It gives us an opportunity to further engage with JSC over matters discipline. Most importantly, the court has held that members interdicted or suspended must have their cases dealt with within certain timelines,” Kuto said.
Lawyer Danstan Omari also hailed the decision saying magistrates are entitled for the protection as provided by the constitution and the law. “It is a paradox the dispensers of justice are denied justice themselves,” Omari said.
Last year, KMJA challenged the powers of Chief Justice to interdict magistrates and other judicial officers.
Through lawyer Omari, the association sought a declaration that the JSC through its secretariat or a subcommittee be the only body obligated by law to appoint, receive complaints against them, investigate and remove them from office or otherwise disciple registrars, magistrates, other judicial officers and other staff of the Judiciary.
KMJA faulted 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 its members, without reference to the JSC.
KMJA also argued that the delegation of powers to the CJ to interdict, suspend and reprimand them 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 urged the court to make a 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 challenged paragraph 16 and 17 of the Third Schedule of the Judicial Service Act, 2011 arguing that it is unconstitutional and inconsistent with Article 47 and 50(2) (e) for being vague and threatening its members rights to speedy disciplinary proceedings with time specifications.
“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,” KMJA submitted.
The association claims so far, the Chief Justice has suspended and interdicted a number of their members, which it believes to have been exercised unconstitutionally and in flagrant violation of the rule of law.
Among those affected are former Kiambu Magistrate Patrick Khaemba who issued Kiambu Governor Waititu with anticipatory bail pending probe over allegations of graft.
Khaemba later resigned after what he termed as frustration from the Chief Justice David Maraga who failed to reinstate him despite being ordered by Employment court to reinstate him to his position.
