Uhuru to Maraga: JSC nominees for judges are tainted

Head of Public Service Joseph Kinyua at the Kasarani Sports Complex, Nairobi. [Elvis Ogina/Standard]

President Uhuru Kenyatta has defended his decision not to gazette 41 judges picked by Judicial Service Commission, saying he had received adverse reports on some of them.

The President argues it would be irresponsible on his part to appoint the judges who enjoy the security of tenure given the integrity concerns and reveals he will ask relevant authorities to take “legal and administrative” action.

It has been four months since JSC nominated 41 individuals for appointment as judges of Appeal, Lands and Employment courts.

However, the President went quiet after the names were forwarded to him, prompting a court case by a lawyer who wants the High Court to compel the Head of State to make the appointments.

Yesterday, Head of Public Service Joseph Kinyua filed an affidavit on behalf of the President in response to the suit, in which he revealed the integrity concerns against some of the nominees.

In the affidavit, the President questions why JSC never considered this adverse information against the unnamed applicants for the jobs in the bench.

“The President received adverse reports in respect to some of the persons recommended for appointments as judges after the names of the said judges were published in the media. The President believes that the Judicial Service Commission ought to have considered the information while arriving its recommendation,” the reply reads.

“It would be irresponsible and contrary to the oath of office for the President to appoint judges, or indeed any other public or State officers to office, where serious questions have been raised about their integrity- more so judges who enjoy security of tenure and whose probity and integrity should be above reproach,” it adds.

According to Mr Kinyua, the President is currently collating all information and consulting relevant authorities with the intention of taking legal and administrative actions.

He argues that the President intends to return the names to JSC for a review and it if it is not done, he will seek the court’s help.

“I am aware that the recommendation by the Judicial Service Commission may be subject to review by either the court or Judicial Service Commission in appropriate cases. Consequently, it would be remiss for the President to appoint judges without contemplating on the impact to the principles of good governance, integrity, accountability, public participation, and sustainable development,” the reply by Kinyua also read.

Kinyua adds that it will be an expensive affair to tax payers for the 41 to be appointed only for a process for their removal be initiated.

“I am aware that the process of removal of judges once appointed is very elaborate, laborious and expensive. Therefore, there is a need for the process of appointment not to be rushed,” adds Kinyua.

Lawyer Adrian Kamotho has sued Attorney General Kihara Kariuki who is the President’s legal adviser, JSC and Chief Justice David Maraga as an interested party because of the delays to hire the new judges.

JSC nominated 11 judges for the Court of Appeal- Justices Francis Tuiyot, Weldon Korir, Mbogholi Msagha, Aggrey Muchelule, George Odunga, Joel Ngugi, Hellen Omondi, Pauline Nyamweya, Jessie Lesiit, Mumbi Ngugi and Kibaya Laibuta.

JSC also recommended 10 names for the Labour Court and 20 others for Lands Court. The President also cited poor funding for his reluctant to appoint the new judges as recommended by the JSC between July and August this year.

In the court papers before High Court judge James Makau, Mr Kinyua detailed that Judiciary does not need extra judges. He claimed that JSC made the nominations without consulting Treasury, SRC, the National Assembly and the general public.

According to Kinyua, JSC was aware the Government was cutting down its expenditure.

“The President has not declined to perform his duties as regards the appointment of persons for appointment as judges, but is actively engaged in ensuring he undertakes the same in accordance with the purposes and objects set out under the Constitution and in a manner that brings honour to the nation, dignity to the office of judges...,” the reply read in part.

Justice Makau gave parties 21 days to seek an out of court settlement.