The below is an open letter, that has remained unchallenged 3 months later, proving that contrary to denials by the judicial services commission, on the Job Sikhala Verdict involving Justice Erica Ndewere, Chief Justice Luke Malaba truly wants to control High Court judgements.

It was written and signed by all the judges of the High Court 22nd July 2020.

DIRECTIVE ON HANDING DOWN AND DISTRIBUTION OF
JUDGMENTS AND ORDERS
1 Reference is made to the Memorandum from the Hon Chief Justice dated 16 July 2020, and the subsequent amendment dated 17 July 2020.
2 The Memorandum gives directives on the procedure to be followed by Judges of the High Court and the Labour Court in the handing down of judgments or orders in certain situations. The substance of the directive is that a judgment that has been handed down cannot afterwards be withdrawn for any reason and that once issued it must be accessible to both the parties and members of the public
3 All the Judges of the High Court identity and agree with the substance of the Memorandum. In fact, it was a subject about which they had been previously consulted arid had aired their own views, including on the issue of to !earpore judgments, addressed in Paragraph 2 (vii) of the Memorandum. In their input, the Judges had expressed their strong support for those positions. This was then communicated to the Hon Chief Justice_
4 However, when the directive was issued in the form of the above Memorandum. It contained completely new issues in Paragraph 2 (iv) and (v) to the effect that.

• before a judgment or an order of the High Court or Labour Court is issued or handed down, it should be ‘seen and approved’ by the head of court or division, and that
• Judges should forthwith desist from the practice of issuing orders with the undertaking to give reasons later, the only exception being in relation to orders on points in & nine.
5 The subsequent amendment removed the word “approved in Paragraph 2 (iv) to
read.
‘Before a judgment or an order of the High Court Of Labour Court is issued or handed down, it should be seen by the head of court /docb,on.’
6 Quite apart from the impracticality of the directive that the head of court or the heads of divisions should ‘see’ every judgment or order before they are handed down (presumably including those made in motion court proceedings, or in bail applications), Judges of the High Court, at all the stations, wish to bring it to the attention of the Hon Chief Justice that. Paragraph 2 (iv) and (v) of the directive, even as amended, is highly objectionable and completely unacceptable for a number of reasons, not least.
• by some administrative fiat, it ;s effectively sought to impugn and seriously undermine the independence of a Judge who, in terms of the Constitution, is appointed as an individual to exercise, without fear or favour, such of the functions as are reposed by law;
• in the exercise of his or her judicial functions, such as making decisions and handing them down, a Judge does not operate under any other Judge or person or body.
• the directive to have the head of court or division ‘see’ a judgment or order before they are handed down lacks precision as to what this means practically, and what the ‘seer’ ought to do after ‘seeing’_