Kenya Judges and Magistrates Association(KJMA) has moved to court to suspend the implementation of some provisions of Judicial Service Act,2011 by Judicial Service Commission(JSC).
Through Musyoki Mogaka & Company Advocates, KJMA wants to stay paragraph 15,16,17,20 and 25 of the third schedule of the Judicial Service Act,2011 by the JSC until the hearing and determination of the petition.
Current Executive Director Daniel Sepu, they want courts declaration that JSC is obliged by law to investigate and remove from office of magistrates and not Chief Justice David Maraga.
Their lawyer Danstan Omari said JSC Act,2011 unconstitutionally empowers the 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 subjectivenes, bias and abuse of such powers as Chief Justice who is a member of the commission and who single heartedly decide on serious issues touching the conduct of magistrates, Kadhis or a judge,” said Omari.
They are challenging the constitutionality of paragraph 15,16,17,20 and 25 of the third schedule of JSC Act,2011.
The magistrates say that the sections tend to delegate the functions of 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 constitution does not anticipate that such powers should be delegated to individual and thus delegation of such powers to chief Justice negates the spirit of Article 172.
Omari said that such sections fails to set out the circumstances under which the power of interdiction or suspension should be deployed.
He added that the rules fail to fix a validity period for interdiction or suspension.
“It does not disclose what behaviors qualify for suspension nor set out parameters for application of the rules by the Chief Justice on a rule onto himself,” said Omari who is representing magistrates,” said Omari.
Through the law firm of Musyoki and Mogaka advocates, KJMA want the court to issue temporally orders suspending the implementation of the paragraphs by the JSC until the hearing and determination of the petition
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 a number of magistrates which act they believe to have been in violation of the law.
He says that if the court does not intervene Maraga will continue to invoke the paragraphs to suspend Magistrates without regard to the constitutional safeguards.