The Kenya Judges and Magistrate Association (KMJA) has moved to court over the suspension and interdiction of its member by the Chief Justice without involving the JSC.
The body is seeking declaration that the delegation of powers to Chief Justice David 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.
KMJA is also seeking a declaration that the Judicial Service Commission (JSC) through its 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 other staff of the judiciary.
Through lawyer Danstan Omari the association 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.
“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,” argues the association.
The association claims that so far, the CJ has suspended and interdicted a number of their members which acts the it reasonably believes to have been exercised unconstitutionally and in flagrant violation of the rule of 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.
According the KMJA, the suspension its members 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.
The association is apprehensive that if the court does not move with speed, there is a risk that the Chief Justice will proceed to invoke the impugned provisions to unilaterally reprimand its members without regard to the Constitutional safeguards.
“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,” states KMJA.
