Friday, July 13, 2012

Ombudsman wants Supreme Court Act amended


Ombudsman wants Supreme Court Act amended

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Updated 1 hrs 42 mins ago
By Isaiah Lucheli
Commission on administrative of justice has moved to the high court seeking for the scrapping sections of the Supreme Court Act terming them inconsistent with the constitution.
 In its submission the commission states that section 14 of the Act purports to vest the Supreme Court with a special jurisdiction to review decisions and judgments of any judge removed from office on account of a recommendation by a tribunal or who resigns or opts to retire, contrary to the constitution.
“The jurisdiction does not flow from the substantive provisions of Article 163 (3) and (4) of the Constitution which limit the Court’s jurisdiction on review of certificates respecting matters of general public importance arising from the Court of Appeal,” the commission through the chairman Otiende Amollo stated.
Amollo added in the petition that whereas the constitution provided for a bench of five as the constituting minimum for the court, the Act unprocedurally and unlawfully deviates from these mandatory provisions by providing that any two judges may sit as the Court and determine specific matters of the court.
 “By providing that proceedings of the court may be heard and determined by a bench of two, the Act is in complete violation of the fundamental Constitutional principle that judicial matters should of necessity always be presided by an uneven number of judges,” Amollo said. 
He added that the Act had unilaterally and unconstitutionally extended the jurisdiction to include issues where the Court was satisfied that the matter was in the interests of justice, criteria that does not exist in the constitution.
The Ombudsman is seeking the high court to declare that section 14 (1) of the Supreme Court Act in contravention of Articles 163 (3), (4) and (5) of the Constitution to the extent that it arrogates new or extended jurisdiction other than that contemplated under the Constitution.
 The commission also prays to the court to declare that section 16 (1) and 16 (2) (b) of the Supreme Court Act, 2011, in contravention of Article 163 of the constitution which establishes the Supreme Court.
The chairman explained that the Act was only supposed to limit itself to providing for the operation of the Supreme Court as provided in the constitution and not to purport to confer upon it jurisdiction beyond that granted by the constitution.
The commission submits that the Act had attempted to limit, extend, alter or otherwise amend the jurisdiction and establishment of the court contrary to the substantive provisions of the Constitution, which was unlawful and unconstitutional.
“In light of the ongoing implementation of the Constitution, the continued application of the said provisions of the Act will impact negatively on Administration of the Supreme Court and the subsequent rules that the Supreme Court may make,” he said.

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