The Procedure to be Followed in Retiring Judicial Officers in the Public Interest

Sheikh Abubakar Bwanakai Abdallah v Judicial Service Commission & another [2017] eKLR

Cause Number 365 of 2013

Industrial Court at Mombasa

James Rika.J

December 15, 2017

Reported by Kakai Toili

Labour Law – employment – termination of employment – retirement – retirement in the public interest – retirement of judicial officers in the public interest - what were the circumstances where a judicial officer could be retired in the public interest - Public Officer Ethics Act 2003; Employment Act 2007, section 6; Judicial Service Code of Conduct and Ethics; Judicial Service Commission Regulations, regulation 28; 1993 United Nations Declaration on Elimination of Violence against Women

Labour Law – employment – termination of employment – retirement – retirement in the public interest – retirement of judicial officers in the public interest- what was the procedure to be followed in retiring judicial officers in the public interest-Employment Act, 2007; Public Officer Ethics Act 2003; Judicial Service Commission Regulations, regulation 28

Labour Law – employment – disciplinary actions of an employer – suspension – administrative suspension - whether administrative suspension of a judicial officer amounted to disciplinary punishment- Employment Act, 2007; Judicial Service Commission Regulations

Labour Law – employment – suspension – rights of an employee on suspension – salary - whether a judicial officer on suspension was entitled to earn salary- Employment Act, 2007; Judicial Service Commission Regulations

Labour Law - employment – suspension – rights of an employee on suspension – alimentary allowance - whether a judicial officer on suspension was entitled to alimentary allowance - Judicial Service Commission Regulations

Brief Facts:

The Claimant was employed by the Respondent as Kadhi and worked from January 1995 to June 22, 2012 when he was retired in the public interest. He was alleged to have been involved in sexual harassment, corruption and lacked good public relations while in Kisumu. It was also alleged that there were demonstrations against him. He was investigated by the Chief Kadhi who prepared a report.

The Claimant was called upon by the 1^st Respondent to show cause why he should not face disciplinary action for unprofessional conduct not befitting a Judicial Officer. The Claimant replied denying the allegations. The 1^st Respondent then interdicted him and a year later he was dismissed for gross misconduct. The Claimant appealed against the decision internally and the dismissal decision was rescinded by the 1^st Respondent.

The Claimant was suspended and his suspension was lifted after 7 years, he was subsequently relieved of his Kadhiship through retirement in the public interest on June 22, 2012. Aggrieved by the decision the Claimant filed the instant Claim seeking among others a declaration that his retirement was wrongful and unfair.

Issues:

(i)                 What were the circumstances where a judicial officer could be retired in the public interest?

(ii)               What was the procedure to be followed in retiring judicial officers in the public interest?

(iii)              Whether administrative suspension of a judicial officer amounted to disciplinary punishment.

(iv)            Whether a judicial officer on suspension was entitled to earn salary.

(v)              Whether a judicial officer on suspension was entitled to alimentary allowance.

Relevant Provisions of the Law:

Employment Act, 2007

Section 6 - Sexual harassment.

(1)   An employee is sexually harassed if the employer of that employee or a representative of that employer or a co-worker—

(a)    directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express—

(i)                promise of preferential treatment in employment;

(ii)              threat of detrimental treatment in employment; or

(iii)            threat about the present or future employment status of the employee;

(b)    uses language whether written or spoken of a sexual nature;

(c)     uses visual material of a sexual nature; or

(d)    shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

(2)   An employer who employs twenty or more employees shall, after consulting with the employees or their representatives if any, issue a policy statement on sexual harassment.

(3)   The policy statement required under subsection (2) may contain any term the employer considers appropriate for the purposes of this section and shall contain—

(a)   the definition of sexual harassment as specified in subsection (1);

(b)   a statement—

(i)                that every employee is entitled to employment that is free of sexual harassment;

(ii)              that the employer shall take steps to ensure that no employee is subjected to sexual harassment;

(iii)            that the employer shall take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction, who subjects any employee to sexual harassment;

(iv)            explaining how complaints of sexual harassment may be brought to the attention of the employer; and

(v)              that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto.

(4)   An employer shall bring to the attention of each person under the employer’s direction the policy statement required under subsection (2).

Judicial Service Commission Regulations (Legal Notice163 of 1966)

Regulation 27 – Retirement on Grounds of Public Interest

(1)  If the Chief Justice, after having considered every report in his possession made with regard to an officer, is of the opinion that it is desirable in the public interest that the service of such officer should be terminated on grounds which cannot suitably be dealt with under any other provision of these Regulations, he shall notify the officer, in writing, specifying the complaints by reason of which his retirement is contemplated together with the substance of any report or part thereof that is detrimental to the officer.

(2)  If, after giving the officer an opportunity of showing cause why he should not be retired in the public interest, the Chief Justice is satisfied that the officer should be required to retire in the public interest, he shall lay before the Commission a report of the case, the officer’s reply and his own recommendation, and the Commission shall decide whether the officer should be required to retire in the public interest.

(3)  When an officer is retired in the public interest, the Pensions Branch of the Treasury shall be furnished with full details of the case by the Chief Justice.

Held:

1.      Whenever a decision was taken in the public interest, it was understood as being informed by the concern for the welfare or well-being of the general public

2.      Public interest hardly had one side. There were multifarious interests within public interest. The voices of the Provincial Commissioners, the Provincial Police Officer (PPO), State Counsel, Imam and Senior Deputy Secretary, the Public Service Commission of Kenya, among others, were expressions of public interest. They were never considered by the 1^st Respondent.

3.      The Senior Deputy Secretary to the Public Service Commission of Kenya would be expected to have some idea what public interest entailed. There were Muslim Leaders, men and women, whose idea of what was in the best of interest of their community in Kisumu, was different from that of the Muslim Sisters. The alternative voices were not considered before the Claimant was forced into retirement.

4.      Retirement in the public interest was of times taken as a code for judicial or executive discretion, in terminating officers’ service. It was a discretion which was susceptible to abuse. Unconstrained, it allowed public bodies to terminate public officers’ service without justification. It made termination of employment without assigning of valid reasons possible. It was a mode of termination broadly invoked, when it was deemed that an officer’s service could not suitably be terminated under other modes of termination.

5.      Punishments which could be inflicted on an officer as a result of disciplinary proceedings included dismissal, stoppage of increment, withholding of increment, deferment of increment, severe reprimand and reprimand, and recovery of costs for any loss or breakage. Nothing in the Judicial Service Commission Regulations (the Regulations), limited an authorized officer, from requiring an officer to retire in the public interest.

6.      Retirement in the public interest had to always be on objective and demonstrable grounds. The Claimant was issued a letter of retirement in the public interest, without assigning any reasons at all.

7.      Where there were opposing public interests, the finder of facts had to make a full and comprehensive analysis of the competing interests. A full and comprehensive analysis of competing public interests carried out by the 1^st Respondent could not be discerned based on the material placed before it.

8.      The complaints against the Claimant were grave and could not be trivialized. Their gravity however, required that they be investigated and tested through a proper disciplinary process. They ought to have been weighed against what the other public officers and Muslim leaders said about the Claimant.

9.      Insults, remarks, insinuations, inappropriate comments, condescending or paternalistic attitude which undermined the dignity of women, amounted to sexual violence. Allegations of sexual harassment should not have been trivialized and not accepted at face value.

10.  No person should be allowed to use his position in the society, to sexually harass women. That applies even in cases of Muslim men. Section 6 of the Employment Act 2007 and 1993 UN Declaration on Elimination of Violence against Women, applied to the broad spectrum of the Kenyan Society.

11. The Claimant was a Muslim man entitled to marry an optimal 4 wives however, he should not have gone about looking for the remaining 3 wives through activities that would have amounted to sexual harassment.

12. The 1^st Respondent as a trier or finder of facts needed to delve deeper into the allegations that faced the Claimant and balance the material availed by the parties, before retiring the Claimant.

13.  The 1^st Respondent merely replicated the accusations made against the Claimant in the report made by the Chief Kadhi. The protestation by the Claimant that there were differences between the Claimant and the Chief Kadhi was ignored.

14. Most of the allegations against the Claimant were criminal in nature or bordering on crime. He was alleged to take bribes yet there was no action taken to prosecute him. There was no suggestion of complaint made to the Police.

15. The Law Enforcement Agencies, as shown in the letters from the PPO and the State Counsel gave the Claimant what read better than a Certificate of Good Conduct. The 1^st Respondent did not seem to have considered that the Claimant had been appointed by the Chief Justice in the past, to exercise magisterial functions.

16. All termination of employment decisions had to be justified based on valid reasons. An Authorized Officer under the Regulations, had to approach the issue of retirement in the public interest with an open mind and act in a quasi-judicial manner. The action taken against a public officer did not fall out of the category of any other kind of dismissal.  The termination of the Claimant’s service was not based on valid reasons. It was not substantively justified.

17.  The Public Officer Ethics Act 2003 required relevant Service Commissions under the Service Commissions Act, Cap 185 the Laws of Kenya, to establish a specific Code of Conduct and Ethics for Officers. The 1^st Respondent formulated a Judicial Service Code of Conduct and Ethics (the Code) published in Kenya Gazette as Legal Notice No. 50 of 2003. Where an officer had committed a breach of the Code, appropriate action had to be taken in accordance with the provisions of Public Officer Ethics Act, Judicial Service Commission Regulations or the Constitution as the case was.

18. The Claimant’s service was terminated under Regulation 28 of the Judicial Service Commission Regulations, in the public interest. The Regulations required the Chief Justice to consider every report in his possession with regard to an officer. All Service Regulations incorporated provisions of relevant legislations which were applicable on matters of employment and all human resources management issues. The Regulations had to be read together with relevant Acts of Parliament, in particular the Employment Act 2007.

19.  It was not clear from the Court record which report was availed to the Chief Justice or even whether any report was availed to the Chief Justice. Key material documents which favoured the Claimant’s position were not taken into consideration in making the decision against him.

20. The 1^st Respondent disregarded Claimant’s right to information under the Constitution by failing to disclose the minutes. Regulation 28 of the Regulations required the Chief Justice to notify the officer in writing, specifying the complaints by reason of which retirement is contemplated, together with the substance of any report or part thereof that was detrimental to the officer.

21. The proceedings at the High Court could not have been the reason for delay in concluding 7 years down the line, a disciplinary process which started in the year 2004. The lack of a reply from the Claimant when asked to show cause why he should not be disciplined, after he was suspended, could not have prevented the 1^st Respondent from concluding the case within reasonable time.

22. The Claimant was never given a personal hearing where his accusers could confront him eyeball to eyeball. The same notice was relied upon by the 1^st Respondent in asking the Claimant to show cause after dismissal was rescinded and Claimant placed under suspension. The 1^st Respondent should have relied on the reply given by the Claimant in the first place and move the process forward.

23. There was no order issued from the High Court staying the disciplinary proceedings. Delay in completing the process could only be attributed to the 1^st Respondent and was detrimental to the Claimant.

24. The Chief Justice was required after giving the Officer an opportunity to show cause why he should not be retired in the public interest, to lay before the 1^st Respondent a report of the case, the Officer’s reply, and the Chief Justice’s own recommendation. The 1^st Respondent decided whether the Officer had to be required to retire in the public interest.

25. The letter retiring the Claimant dated July 5, 2012 did not indicate, whether the Chief Justice placed any report on the case before the 1^st Respondent. Nothing was said about the recommendation of the Chief Justice. It was just the decision which was made known to the Claimant.

26. An officer would not have known if the 1^st Respondent complied with the Regulations without access to the proceedings which led to retirement in the public interest.

27. Regulations relating to suspension of Judicial Officers were onerous and a fertile seed-bed, for unfair labour practices. Administrative suspension was not a disciplinary sanction. The Officer merely stepped aside to allow his employer to carry out investigations and disciplinary process against him without the possibility of the Officer interfering with the process. Suspension in the context was not a disciplinary punishment. It should not have been applied as if it was a punishment.

28. Suspension Regulation was onerous in the extreme as it allowed for an officer to go on suspension without pay. The Officer remained an Employee, with mutuality of obligations. The contract of employment remained. A regulation which allowed an employee to go without any form of a salary while still under contract was in breach of fair labour practices.

29.  The terms of suspension which ran for about 7 years were oppressive. The letter by the Chief Magistrate, Kisumu addressed to the Registrar of the High Court dated September 10, 2010 stated that the Claimant had reported to the Chief Magistrate every Friday until 2008. It was to be expected that without any income the Claimant could fail in meeting his terms of suspension as he resided in Mombasa was not able to pay rent in Kisumu without a salary.

30. The Chief Justice under the Regulations was permitted to grant alimentary allowance to an officer on suspension. The Claimant did not receive any alimentary allowance. The term alimentary was similar to the term alimony. The terms generally described periodical payments sufficient for the bare support of the recipient.

31. Without a salary and alimentary allowance, the Claimant was left without bare support. He would not have had the ability to honour the terms of his suspension or fairly defend himself before the 1^st Respondent. Although payment of alimentary allowance to an officer on suspension was at the discretion of the Chief Justice, such discretion did not appear to have been judiciously exercised in the circumstances. The Claimant was not taken through a fair disciplinary process.

32. An unfair termination decision made in the year 2012 would have correctly been remedied under the Employment Act 2007 notwithstanding that the disciplinary process was initiated in 2005.

33.  The remedy of reinstatement was appropriate whenever there were multiple violations in the process of termination. The retirement of the Claimant in the public interest was not based on valid reasons and was not carried out fairly.

34. The Claimant had not discharged the role of Kadhi for about 13 years. The Employment Act 2007 did not allow the Court to reinstate employees whose contracts were unfairly terminated after the lapse of 3 years from the date of termination.

35.  Alimentary allowance was under the Regulations given at the discretion of the Chief Justice. The amount was determined by the Chief Justice. It was not something that the Court could enforce.

36.  The Claimant had a contract of employment which was only brought to an end in the year 2012. He was still an Employee of the 1^st Respondent. The Claimant remained under contract and in the 1^st Respondent’s payroll. The Claimant should not have been denied his salary for the period between June 2005 and June 2012. Had a proper disciplinary process been put in place, suspension would have in all likelihood been lifted and the Claimant restored to service with full salary for the period under suspension.

37. The salary payable to a Kadhi was not static from 2005 up to 2012. The Claimant did not work up to 2012. A fair rate in granting him arrears of salary should have been the rate applicable when he left work.

38. The Claimant did not demonstrate that he merited a compensatory award beyond the statutory ceiling the equivalent of 12 months’ gross salary. Remedies in claims for wrongful or unfair termination were not meant to cripple employers or enrich employees unjustly. The remedies were aimed at redressing economic injury sustained by the employee proportionately.

39. The Claimant’s letter of appointment entitled him retirement benefits in accordance with the provisions of pension legislation of the Public Service of Kenya. The Judicial Service Commission Regulations stated that where an officer was retired in the public interest, the Pensions Branch of the Treasury had to be furnished with the full details of the case by the Chief Justice.

40. The principle of fair dealing between Employers and Employees, called for delicate balancing of interests.

Claim partly allowed

I.                    Retirement of the Claimant in the public interest declared wrongful and unfair.

II.                  The 1^st Respondent to pay to the Claimant: arrears of salary at Kshs. 1,388,100 and the equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 198,300- total Kshs. 1,586,400.

III.                The 1^st Respondent to facilitate the Claimant in payment of pension.

IV.              Interest granted on the arrears of salary at 14% per annum from June 2005, till payment made in full.

V.                Costs to the Claimant to be paid by the 1^st Respondent.