Kenya Judges and Magistrates Association (KJMA) has challenged the constitutionality of some paragraphs of the Judicial Service Act, 2011 that give Chief Justice powers to suspend them.
The judges filed a petition yesterday at the Nairobi High Court seeking orders to suspend the implementation of some provisions of the Act by Judicial Service Commission (JSC).
Through Musyoki Mogaka & Company Advocates, KJMA wants paragraph 15,16,17,20 and 25 of the third schedule of the Act suspended until the hearing and determination of the petition.
Their current Executive Director Daniel Sepu wants the court to declare that it the JSC which is obliged by law to investigate and suspend magistrates and not Chief Justice David Maraga.
KJM through lawyer Danstan Omari said the Act unconstitutionally empowers Maraga to suspend and reprimand members of the magistrate’s association without reference to the JSC.
“The members of KJMA are reasonably apprehensive of the unilateral exercise of such powers as it invites bias and abuse of such powers when dealing with serious issues touching on the conduct of magistrates, Kadhis or a judge,” said Omari.
The association members say that the sections tend to delegate the functions of JSC to the Chief Justice illegally and in a manner not anticipated by the Constitution.
“The functions of JSC is to discipline the magistrates, Judicial Officers and Judicial staffs as captured under Article 170 of the Constitution,” said Sepu.
They say that the spirit of the Constitution does not anticipate that such powers should be delegated to an individual and thus delegation of such powers to chief Justice negates the spirit of Article 172.
Omari said that such sections fail to set out the circumstances under which the power of interdiction or suspension should be deployed.
They claim that the provisions are being used to empower Chief Justice to suspend members of KJMA without reference to JSC.
Omari said that so far Chief Justice David Maraga has suspended some magistrates, suspensions they believe to have violated the law.
He said that if the court does not intervene Maraga will continue to invoke the paragraphs to suspend magistrates without regard to the constitutional safeguards.
The case will be heard on July 30.
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