Bid to clip President's powers

 Okoa Kenya committee of experts chairman Paul Mwangi addressing the press after meeting with the Chief Justice Dr.Willy Mutunga at his office.

Kenya: The Coalition for Reforms and Democracy (CORD) has proposed that the President should be barred from participating in appointing the Chief Justice, his deputy and judges as they stepped up their referendum bid.

CORD proposes to amend the Constitution to remove the powers of the President to appoint the judges and vest the powers exclusively in the Judicial Service Commission (JSC) upon approval by Parliament.

Under the current dispensation, JSC conducts interviews and nominates the CJ and his deputy for vetting in the National Assembly before the President appoints them. In the case of judges, JSC conducts interviews and nominates successful candidates for formal appointment by the President.

CORD argues that the powers given to the President to appoint the CJ, his deputy and judges interferes with the independence of the Judiciary. In any case, the Opposition says, the President has four representatives in JSC via the Attorney General, two members of the public appointed by the Head of State and the chairperson of the Public Service Commission.

They say they want to prevent what happened when JSC nominated 25 new judges in January and it took the President five months to appoint 11 from the list. President Uhuru Kenyatta is yet to appoint the remaining 14, nine months later.

Alternatively, should the President continue to play a role in the appointments, CORD argues that the Constitution should provide for him to be given a timeline of 14 days to avoid a similar delay.

This was among the proposals that the Okoa Kenya Movement's Committee of Experts led by Paul Mwangi presented to Chief Justice Willy Mutunga when they visited him in his office yesterday.

CORD further seeks to amend the law relating to a presidential election to expand or extend the timeline from the current 14 days within which the Supreme Court can determine the validity of the winner's victory.

"The experience from the first presidential election decided by the Supreme Court shows the timelines are unrealistic," said the Okoa team.

In the petition, the team also proposes to expand the Supreme Court's jurisdiction to have original and concurrent justification to determine the constitutionality of new bills immediately they become law.

JUDICIARY FUNDING

They want the Supreme Court to have 30 days to determine the constitutionality of any Bill immediately it is signed into law by the President, with the Act being suspended once it has been petitioned in court.

 

"This is to guard against the excesses of Parliament in the operation of the doctrine of separation of powers," the document reads.

Okoa is also proposing that the Constitution provides for a minimum funding for the Judiciary calculated as a percentage of the budget, to ensure the institution's independence is not compromised.

It wants the Constitution to allocate the Supreme Court powers to review the judgements of any judge who has been removed from the Judiciary either by a tribunal appointed by the President or by the Judges and Magistrates Vetting Board.

Receiving the proposals, the CJ announced that he had created a forum through which Judiciary officials, including judges, magistrates and other staff could engage each other in what he called a "neutral intellectual space" without appearing to take sides.

The CJ said he had tasked the Judiciary Training Institute (JTI) with receiving a summary of public views collected so far in order to launch a broad-based conversation.

"As you are aware, JTI is the institution's intellectual hub and workshop of ideas. That is why I have tasked it to receive a summary of the public views collected," he said.

Dr Mutunga however said his willingness to engage Okoa Kenya did not mean the courts sided with any side of the referendum push.

He explained that his granting an audience should not be taken to mean that the Judiciary has taken sides in the ongoing debate, saying they have had similar engagements with the leadership of the security services on counter-terrorism and national security, and have planned more conversations with the Senate.

PUBLIC OPINION

"JTI provides a window for judicial officers and other leaders in the Judiciary to contribute to this debate in a neutral intellectual space without appearing to take sides," he said.

The visit comes at a time when a Jubilee MP and three other activists have filed cases in the High Court seeking to stop the ongoing collection of signatures by Okoa Kenya. Mutunga could not avoid clarifying the implication of his meeting on the cases.

"Although I am aware that there are several matters in court raising legal and constitutional questions around the vote drive, I am convinced that the leadership of the Judiciary needs to continue to be open and accessible to every Kenyan as well as to all shades of public opinion," he said.