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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