MORE than 40 former magistrates have taken another step in their fight against the Judicial Service Commission of Kenya. The magistrates have been contesting their 2003 dismissal, when they were “retired in the public interest”, a compulsory move made as part of “radical surgery” intended to deal with corruption in the judiciary at the time. They say they were wrongly dismissed and initially took their case to the high court’s constitutional division. But that court has now held that the 42 were indeed employed by the Judicial Service Commission and that their dispute should be heard by the employment and labour relations court.
THE case of the 42 magistrates is another long-running legal battle aimed at reversing some of the “radical surgery” performed on the Kenyan judiciary in the years from 2002.
That was the year in which tough steps were taken to root out corruption within the judicial sphere and a number of judges and other judicial officers were let go.
In their application to the high court’s constitutional division, the magistrates say that when the Judicial Service Commission of Kenya took the decision to get rid of them this “violated their constitutional rights and fundamental freedoms” and they asked for a declaration to this effect.
The JSC however contests the magistrates’ legal action, saying the high court’s constitutional division has no jurisdiction to hear the matter – and that the claim was brought too late.
Though counsel for the JSC said there could be no doubt that the dispute was an employment matter because the magistrates had been employed by the JSC, counsel for the applicants took a different approach, arguing that as their letters of employment were issued by the Public Service Commission, the JSC was not the employer.
Judge Chacha Mwita said the court could only hear a case if it had the jurisdiction to do so. Reviewing the plea of the former magistrates, he said they were judicial officers employed to serve as magistrates. He had read through the record and it was correct that they were appointed as magistrates who served “at various levels within the judiciary”.
In 2003, however, they were “retired by (the JSC) on public interest … during the radical surgery within the judiciary.” He said there was no doubt that the case they had brought was one involving employer and employee over termination of employment.
In 2010 “the people of Kenya adopted a constitution that significantly changed the judiciary’s way of conducting its affairs.” One way this changed was that three sets of courts of equal status would exercise separate jurisdiction. These were the High Court, the Employment and Labour Relations Court (ELRC) and the Environment and Land Court. All cases relating to disputes arising out of employment would be heard by the ELRC no matter what kind of dispute this might be.
The magistrates’ salaries were paid by the JSC according to their pay slips and there could be no doubt that they were indeed employees of the commission. This meant that the dispute related to termination of employment and whether the commission followed correct procedures in bringing their employment to an end.
Under the constitution, the high court had no jurisdiction to hear matters falling within the scope of the labour and land courts. Although the dispute raised issues to do with “violation of rights and fundamental freedoms” these rights and freedoms were in the nature of rights that accrued because of the employer-employee relationship.
In that regard, said Judge Mwita, the ELRC had jurisdiction to hear disputes that, even if they touched on human rights and fundamental freedoms, arose from the nature of the relationship between the parties.
He therefore ruled that the petition should be handled by the ELRC. However, he declined to strike out the pleadings, but said in his view the appropriate order to make was to refer the matter to the ELRC for hearing and determination.