Court dismisses petition to clip the powers of CJ
The High Court has dismissed a petition seeking to bar the Chief Justice from suspending or interdicting magistrates and judges.
In her lengthy judgment, Justice Maureen Onyango of Environment and Labour Relations Court, said the application by the Kenya Judges and Magistrates Association (KJMA) did not prove that letters of interdiction, suspension or reprimand by the Chief Justice had been issued unilaterally.
She said the union not only failed to demonstrate that any letter had been issued, but it also failed to show that such issuance offended Articles 27(1) and 172 of the Constitution.
KJMA moved to court in July 2019 through Musyoki Mogaka & Company Advocates, to challenge the powers of the Chief Justice to take disciplinary actions against judicial officers.
The union said the powers to interdict and suspend a judicial officer ought to lie with Judicial Service Commission.
Justice Onyango also rejected the union’s request to declare that decision by CJ to discipline them threatens their rights to equal protection and equal benefit of the law.
Onyango also observed said that the union failed to prove that some paragraphs of the Third Schedule Judicial Service Act, 2011 are inconsistent with Articles 47 and 50(2) of the Constitution
KJMA had argued that paragraph 16 and 17 of the Third Schedule of the Act is unconstitutional and inconsistent with said articles of the Constitution, for being vague and threatening their rights to a speedy disciplinary proceedings with time specifications.
“The provisions fail to set out the circumstances under which interdiction or suspension may be exercised and the validity period for interdiction for affected judicial officers,” said the union.
Indefinite suspension
In its view, the union said the powers to interdict and suspend a judicial officer ought to lie with the JSC and any delegation of such powers ought to vest in an independent commission and not to the office of Chief Justice.
However, Justice Onyango agreed with the union that indefinite suspension and unrestricted periods of interdiction of judges and magistrates amount to a violation of the Constitution.
In his response to the petition, the Chief Justice, through Chief Registrar Anne Amadi, said interdiction and suspension are not final in nature, but are interlocutory safeguards to the disciplinary process from interference by the said officer to ensure sanctity of the process.
“The disciplinary process under the Judicial Service Act meets the threshold of a fair administrative action and a fair hearing as envisaged under Article 47 of the Constitution and Section 4(3) of the Fair Administrative Actions Act,” said Ms Amadi. She said that on suspension, judicial officers do not earn a salary but an Alimentary allowance.
Amadi described the petition as speculative, saying the union failed to point out specific instances where the Chief Justice had abused his delegated power to suspend or interdict.
She nonetheless confirmed that in instances where officers feel aggrieved with the exercise of such powers by the CJ they have a right of appeal.
