Magistrates and judges want the High Court to suspend sections of the Judicial Service Act that give Chief Justice David Maraga powers to interdict and suspend a judicial officer.
The Magistrate and Judges Association says the JSC developed rules 15, 16 and 17 of the Third Schedule to the Judicial Service Act, which Parliament approved. The rules delegate the power to interdict and suspend a judicial officer orstaff to the CJ.
Association lawyer Duntsan Omari says such powers ordinarily should lie in 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. .
Omari says 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 says the contested provisions of the Third Schedule have unconstitutionally donated so much power to the Chief Justice. He says the same paragraphs have denied any reasonable person the power 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,” says Omari.
The association has sued JSC, the Attorney General and the CJ seeking the court to declare that the JSC secretariat or a subcommittee is 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 in the absence of the participation of the commission offends Article 172 of the Constitution.
Maraga is the chairperson of the JSC. The association believes that to remove conflict of interest, assignment of such nature ought to be vested in an independent committee and not an individual who presides over the same body which has power to punish.
In an affidavit, KMJA director Daniel Sepu says the impugned provisions of the law tend to delegate the functions of the JSC in a manner not prescribed in the Constitution.
“Such unconstitutional delegation of powers to interdict, suspend and reprimand to the person/office of the Chief Justice is bound to interferences of personal biases and lack of objectivity,” the affidavit reads.
Justice Weldon Korir certified the matter as urgent and directed parties to appear on July 30 before Justice James Makau for further directions.
