BY SAM ALFAN.
Chief Justice Martha Koome has been given two weeks to file her response in a petition challenging a move by the Judiciary to establish a desk at Huduma Centers.
High Court judge Lawrence Mugambi also gave the chief executive officer of Huduma Kenya and acting chief registrar of the Judiciary 14 days to file their responses in a petition filed by city lawyer Caroline Kamende.
Kamende moved to court seeking to suspend the Judiciary’s decision to operationalize Judiciary desks at Huduma Centres, pending hearing and determination of the case.
The matter be mentioned on 18th of March for further directions.
“Unless the orders sought herein are granted, the petitioner, hundreds of members of the 1″ interested party, as well as thousands of members of the public, are likely to be irreparably harmed by the intended rollout of the judiciary desks in Huduma Centres,” argues the lawyer.
The establishment of the desks, dubbed as the Judiciary Huduma Mahakamani, has been condemned by lawyers.
In an internal memo on the 25th of January 2024, the Chief Justice shared an internal memo notifying Judiciary staff that a select number of judicial services will be offered at Judiciary desks in Huduma Centres.
It is her argument that Law Society of Kenya, and its members were not consulted before the Judiciary acquiesced to the transfer of the judicial services to judiciary desks to be domiciled in the Ministry of Public Service, Delivery, and Performance Management.
The lawyer says the decision contravenes or threatens, Article 10, 46(1), 48, 160(1) of the Constitution, as well as Section 31 of the Advocate’s Act, Cap 16, as follows: Article 10(2)(a), obliges all state organs, state, and public officers to conduct public participation when making and implementing public policy decisions.
“The members of the Law Society of Kenya, a major stakeholder in the justice sector, were not consulted in arriving at the decision to transfer the judicial services to the judiciary desks that are to be domiciled in the Ministry of Public Service. Delivery, and Performance Management. Article 46(1) of the Constitution of Kenya, 2010, entitles all Kenyan Citizens to goods and services of reasonable quality,” the lawyer said.
It is her argument that the decision by the Judiciary and the Ministry of Public Service to bypass the LSK, the regulator of legal services, exposes the public to the risk of consuming legal services of questionable quality given that the LSK has not been tagged to ensure professional standards are adhered to in the administration of the said services.
Lawyer Kamende further adds that in a blatant and unprecedented infraction of multiple constitutional provisions, the Judiciary has made an administrative decision to collaborate with the executive in the performance of its exclusive function of administration of justice, in a manner that undermines the Independence of the Judiciary and the hallowed Doctrine of Separation of Powers.
In separate communiques, Huduma Kenya and the Judiciary have notified the public of the intention to roll out a programme that would entail domiciling Court Registries or Judiciary Desks in select Huduma Centres.
“There is an eminent risk of the programme undermining the Independence of the Judiciary and the Doctrine of Separation of Powers, if it commences on the 29th of January 2024 as per the notices and memos and LSK and its members, being the major stakeholders in the justice sector, were not involved or consulted in the unconstitutional administrative decision by the Judiciary to domicile judiciary desks in the Ministry of Public Service, Delivery, and Performance Management,” says Kamende.
She adds that the Judiciary seeks to roll out the programme on 29th January 2024, without releasing sufficient information and directions on how the programme will work, which lack of information poses a real danger to the constitutional right of Kenyans to access justice and the programme.
“Persons masquerading as advocates are eagerly awaiting the rollout of the programme to take advantage of the unclarity in its functionality to unlawfully circumvent advocates and illegally offer the services of advocates to unsuspecting members of the public and it is in the best interest of justice that the orders sought herein are temporarily granted, pending the hearing and determination of this application, and subsequently the Petition, to avert an unprecedented violation of the Constitution with far-reaching consequences,” argues LSK presidential candidate.
She said the Judiciary and the Executive will suffer no detriment if the rushed and ill-thought decision is temporarily stopped, pending the hearing and determination of the petition.
She said the suspension will allow more time for consultations and acquisition of more information on the programme.
