Human rights activist Okiya Omtatah (above) has filed a petition before the Judicial Service Commission to have Chief Justice David Maraga investigated and subsequently removed for gross misconduct.
In the petition, Omtatah argues that Maraga breached oath of office, acted in a manner incompatible with the status of a judge of a superior court and the Chief Justice of Kenya.
The activist accuses the Chief Justice of interfering with the independence of a judge in a case where he is challenging Governments’ move to re-advertise the position of the Auditor General.
According to Omtatah, Maraga illegally called out a court file from the cause list, making Labour Court judge Stephen Radido not to deliver his ruling on the case on February 26.
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The petition states: “The judgment in the ELRC Petition No 244 of 2020, was scheduled to be delivered on February 26, 2020, but when it was called out of the causer list, Justice Stephen Radido presiding over the case informed the Court that he could not deliver judgment because Chief Justice had taken the court file from him, and that judgment would be delivered on notice.”
He has accused Maraga of interfering with the ‘autonomy of the trial judge.’ He says that Justice Maraga’s action would only be lawful if litigants in the petition made such an application.
Mr Omtatah has therefore stated that CJ Maraga’s conduct should be subjected to scrutiny as he fails to meet the requirements of the law to occupy the office.
“The outrageous decision to call for the file from the trial judge, on his on motion, constitutes a gross violation of Constitution to the extent that it interferes with the independence of the judge and administration justice as a whole,” Omtatah says in the petition dated March 4.
He also said that the move violates the petitioner’s access to justice as required by the law. Omtatah says that given that the action comes just after January 23, 2020 report on the state of Judiciary by President of Uhuru Kenyatta, the JSC needs to take up the matter with concern.
“That the Judicial Service Commission be pleased to initiate the necessary procedures for inquiry into the conduct and subsequent removal of Chief Justice David Kenani Maraga for breach of oath of office and gross misconduct and/or misbehavior incompatible with the Status of Judge of the Supreme Court of Kenya.
On January 18, 2020, Justice Stephen Radido of the Employment and Labour Relations Court ordered the State not to advertise, publish or re-advertise for the vacancy in the AG’s Office until the case filed by activist Okiya Omtatah is heard and determined.
“Pending the inter-parties hearing and determination of this application and/or petition, the court hereby issues an interim order prohibiting the respondents and their agents; howsoever acting from giving effect to the advert, howsoever published, re-advertising the vacancy in the office of the Auditor-General and asking qualified and interested persons to apply,” he ruled.
Omtatah argued that the law does not provide for a repeat recruitment process exercise except where all the nominees are rejected by Parliament.