Human rights activist Okiya Omtatah has protested a move by Chief Justice (CJ) David Maraga calling for a court file challenging the skewed manner in which the Auditor-General was recruited conducted.
In his letter, Omtatah wants CJ Maraga to make a full disclosure within 48 hours on why he called for the court file.
The activist says he got the shock of his life on Wednesday morning when the Employment and Labour Relations Court judge Stephen Radido informed the open court that he could not deliver the judgement because the file had been recalled by the CJ.
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"The learned judge directed the parties that the judgement will be given on notice after the Chief Justice is through with the file and he returns it to the trial court," the judge said.
Omtatah argues that that Maraga does not have powers under the law to interfere with the work of other judges.
"The only two occasions under the law when a file is sent up to him are when he is asked to empanel an uneven bench of judges to hear a matter certified as raising a substantial question of law and when the Judicial Service Commission calls for a file following complaints formally lodged with it against a trial judge and to the best of my knowledge, none of the occasion obtained herein," says Omtatah.
Further, the activist said that he reasonably suspects that CJ Maraga is interfering with the autonomy of the trial court to have a judgment bearing the colours of his mind.
At the same time, the Omtatah has also filed an application asking Justice Radido to recuse himself from hearing or rendering the judgement in the matter.
The activist now wants the CJ to appoint a bench of not less than three judges to hear and determine the matter which raises substantial questions of the law.
"The independence of individual judges, who are tasked with interpreting and applying the law in specific cases, is a very important part of this principle," says Omtatah.
The activist also says that the circumstances under which the file was taken to Maraga remain obscure and susceptible to raising serious doubts on the decisional independence of the judge in relation to the suit.
"In the interest of justice that the integrity of this court is to safeguard by insulating it from actions, administrative or otherwise, that in effect could undermine the principles set in out at Article 48,50(1), 159 and 161(1) of the constitution," says Omtatah.
The activist contends that his application does not seek to cast aspersions on the person of the presiding judge but rather it requests the court to apply its mind to the fact that whichever way the court rules its decision will be perceived as bearing the colours of the mind of the CJ.
"There is a likelihood of bias as the matters complained of are capable of creating reasonable doubt in the minds of members of the public about fairness in the administration of justice," Omtatah adds.
He further states that the prayer for recusal is sensible and is not a vehicle for shopping for judges and is ready to have the matter heard by any other judge without any reference.
