LSK faults Uhuru over choice of judges

The Law Society of Kenya (LSK) is set to move to court to challenge President Uhuru Kenyatta’s appointment of 11 judges from a list of 25.

The Judicial Service Commission (JSC) had recommended 25 names to Uhuru for appointment as High Court judges on January 10, but only 11 were confirmed.

In a statement released at the weekend, the lawyers’ body criticised President Uhuru Kenyatta for leaving out the other lawyers.

“The President’s role in the appointment of judges is ceremonial and he cannot purport to approve or disapprove names of those recommended for appointment by the Judicial Service Commission,” said LSK Chairman Eric Mutua.

Mutua, in a letter signed by CEO Apollo Mboya said, “JSC continues to exhibit cowardice through a conspiracy of silence in the wake of clear violation of the Constitution.”

The LSK chair said his office’s views are that Uhuru has been acting unconstitutionally and hampering operations of the JSC and by extension, undermining the rule of law.

The lawyers’ agency has instructed Senior Counsel Nzamba Kitonga to file a petition seeking declarations that “the role of the President in the appointment of judges is ceremonial and that the purported approval and/or disapproval of names of those recommended for appointment as judges by the Judicial Service Commission is unconstitutional”.

Seeking declaration

“The President has abdicated his constitutional duty in respect of appointment of the 25 judges and in replacing Prof Christine Mango, the lay person in the JSC, whose tenure expired in December 2013,” the LSK chairman said.

The petition, Mutua said, will seek a declaration that the delay in appointing all the 25 judges suggested by JSC is unreasonable and unconstitutional.

In Friday’s appointments, a brief statement from State House in Nairobi said: “The appointments take effect from July 1. The process of appointing the remaining 14 is still ongoing and the President will give his approval or disapproval once it comes to an end.”

However, Mboya maintained the law does not allow the Head of State to choose who to appoint or drop.

“He cannot cherry-pick who to appoint,” he said.

LSK has taken yet another dimension, contrary to the Judiciary’s views that there is great judicial transformation.

“The public has started witnessing the increase in case backlog in the Judiciary, which requires a multifaceted manner of approach, including the decentralisation of courts, better case management and the increase in the number of judicial officers,” said Mutua.

According to Article 166 of the Constitution, the President shall appoint judges in accordance with JSC’s recommendation.

LSK has also challenged Uhuru to explain the delays in appointments after he took more than five months to approve the names as the Judiciary engaged in a tug-of-war with the Executive.

Pundits have said it is a worrying trend that Uhuru has choice on who to appoint. They say, for example, if the National Intelligence Service has given Uhuru information over names of some judges to be appointed, this could have happened earlier when JSC was seeking public views.

A senior lawyer privy to the matter said the names forwarded to Uhuru by the JSC cannot be altered.