Contest for JSC magistrate's slot heats up

Members of the Kenya Judges and Magistrates Association (KMJA) are set to elect one of their own to help decide who takes over from Chief Justice David Maraga.

Four candidates have been cleared by KMJA to vie for the position to represent the association at the Judicial Service Commission (JSC), a seat that also comes with powers to hire and fire judges or magistrates.

KMJA has also dropped Principal Magistrate Teresa Nyangena from the race on the grounds that she failed to provide all signatures for 20 members who nominated her by close of business on September 28.

A letter signed by Daniel Sepu, KMJA’s executive director, on September 29 says Nyangena also did not provide all 20 certified copies of national and staff identification cards of those who nominated her to contest for the position.

But the Senior Principal Magistrate has appealed the decision.

Those cleared for the election to be held on December 5 are Senior Principal magistrates Everlyne Olwande (pictured- Limuru), Stellah Atambo (Kiambu), Dolphina Alego (Kakamega) and Florence Macharia (Shanzu).

The Judicial Service Act provides that KMJA forwards the name of whoever is elected as its nominee to the president, who is expected to appoint the nominee within three days of receipt of the name.

The candidate who wins the race will replace Commissioner Emily Ominde who was appointed in 2015 to represent 500-odd magistrates and Kadhis in Kenya.

The new representative will have her hands full in solving issues affecting magistrates and Kadhis.

From members’ welfare to working conditions, the elected candidate is to join the 11-member commission at a time when magistrates and Kadhis are legally battling with the Salaries and Remuneration Commission (SRC) over non-practising allowance and pay rise.

Campaigns

For instance, whereas State counsels and prosecutors were earning non-practising allowances ranging from Sh30,000 to Sh50,000, those of judicial officers’ was capped at Sh10,000.

The judges and magistrates’ representative will also sit in the panel that is to replace Justice JB Ojwang, who retired from the Supreme Court in February when he attained the age of 70.

She will also sit in panels for the appointment of judges of other superior courts even as the stalemate over the failure by the president to appoint 41 judges recommended to him by the JSC continues.

Some JSC commissioners are said to be looking after the interests of those who appointed them, leaving judicial officers who bear the brunt of working conditions with a lesser number fighting for them.

Campaigns for the seat at the powerful commission have started in earnest, with the aspirants using digital spaces to post advertisements selling their candidature.

The candidates have been visiting various stations to convince their colleagues to elect them. The candidates, who have grown through the ranks, have been in the judiciary for 15 years and served in various stations.

Atambo, who is also a certified chartered mediator, says she will lobby for the Judiciary to have an internal dispute resolution mechanism to solve minor issues at the station level.

“When somebody comes to court, the first contact with justice is at the magistrate level. We need somebody to tell our story out there and in the commission,” she says.

Olwande, who is KMJA vice president, says she would be more effective in serving members while in the commission.

“My manifesto was developed by members to project issues that are of concern to them in their day-to-day operations. My slogan is ‘A JSC that cares’,” she says.

She pledges to lobby for the improvement of members’ welfare on areas such as security and transport.

Magistrates and kadhis have a car loan and mortgage facilities, which most of them cannot afford given the salaries they earn.

The car loan fund managed by a bank has a cap of Sh10 million and the mortgage is at 15 million repayable in 20 years.

This has led to a number of magistrates using mass transport to work, putting them at risk of sharing space with parties in a case or a person they convicted for offences such as robbery with violence.

Alego says there is need for the law to be amended for magistrates and kadhis to have security of tenure and career growth.

Kadhis are members of KMJA but earn between Sh29,981 and Sh103,894 per month.

The Chief Kadhi ranks lower than a chief magistrate and is on Job Group P, a grade equivalent to that of a High Court senior executive secretary.

Macharia, whose slogan is “Fit for JSC”, says she will advocate for talent recognition, equal opportunity and fairness in disciplinary process.

Past elections for a seat at the JSC have been marred by controversies.

For instance, cutthroat campaigns and court battles ensued last year before the Law Society of Kenya (LSK) members went to the ballot and eventually elected Macharia Njeru over his rival Tom Ojienda.

Legal battles

There were claims that both the State and non-State actors were trying to influence the commission when Court of Appeal judge Mohammed Warsame was re-elected by judges only for President Kenyatta to forward his name to Parliament for vetting.

JSC termed the vetting as unconstitutional since it was not provided for in either the Constitution of Kenya 2010 or the Judicial Service Act 2011.

However, the MPs adopted a report that blocked the judge’s appointment and accused the Judiciary of interfering with their work.

But even as the legal battle for Warsame to join the commission was going on, the appointment of the president’s nominees — Prof Olive Mugenda, Patrick Gichohi and former CS Felix Koskei — stalled for several months.

This created a quorum hitch that made the commission unable to handle appointments and disciplinary cases.