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Lawyers to Uhuru: You've no option but to appoint judges

Justice David Maraga (left) and President Uhuru Kenyatta (centre) in a past function: Lawyers view the president's refusal to appoint new judges as an extension of the war against the Judiciary by the Executive and the Legislative arms of the government. [File, Standard]

Senior lawyers yesterday said President Uhuru Kenyatta’s failure to appoint 41 new judges capped a worrying trend to undermine the independence of the Judiciary, coming days after its budget was slashed drastically.

The President told the High Court on Tuesday that he did not gazette the new judges nominated by the Judicial Service Commission (JSC) because some of them had integrity issues and it would be irresponsible of him to appoint tainted individuals to the positions that have security of tenure.

However, top lawyers, while reacting to an exclusive story by The Standard detailing the President’s reservations, argued Uhuru’s action was an affront to the independence of the Judiciary because it interfered with the mandate of JSC, a constitutional body established to run affairs of Judiciary.

They drew a pattern to the systematic reduction of Judiciary’s budget which was slashed by half last year and this year by nearly a third- as well as past actions by top State officers to defy court orders.

The lawyers insisted any adverse information should have been presented to JSC during the interviews when submissions from the public as well as vetting reports from State agencies including Ethics and Anti-Corruption Commission, Kenya Revenue Authority, Directorate of Criminal Investigations and secret security briefings are considered.

Affront on Judiciary

They said the President does not have mandate to review the names from JSC and the only option available is to appoint them and file complaint(s) for their removal before the commission. 

Lawyer Abdikadir Mohammed, who once served as Uhuru’s advisor on constitutional and legal affairs, said that while he was not for the appointment of tainted judges, it was not possible that all the 41 nominees had problems.

“It couldn’t be that all the 41 nominees have issues. What was hard in taking the adverse information to the JSC? This (citing reasons against the appointment once the JSC has submitted the names) is not provided for. Why all the 41? It’s an attempt to cheapen the independence of the judiciary,” says Abdikadir, who in 2010 chaired the Parliamentary Select Committee on the Constitution.

“There is a war on the Judiciary which is not proper. Financial independence and creation of a JSC to run the affairs of the Judiciary were two issues introduced in the Constitution to protect its independence. These are coming under a lot of strain,” he explains.

Abdikadir also cited the drastic budget cuts and creeping culture of senior State officers defying court orders as signs of an Executive uncomfortable with a vibrant Judiciary.

Treasury last week cut Judiciary’s budget by Sh3 billion. Last year, Judiciary had requested Sh31 billion, but Parliament slashed the allocation to Sh14.5 billion.

At the time, Chief Justice David Maraga signalled that all was not well as the money given by Parliament could barely support operations of the court.

Abdikadir said that the fights are not new.

“There is a long history of the push back against the JSC and the Judiciary,” he adds.

Tainting the nominees

Last year, it took the intervention of the courts for Court of Appeal judge Mohamed Warsame to be sworn in as a JSC commissioner after President declined to appoint him.

It took a year of back and forth for the court to finally declare that the senior judge who was elected by his peers cannot be vetted.

Makueni Senator Mutula Kilonzo said the standoff will end up tainting the nominees. He argued that if the President had adverse information against any of the nominees, then it ought to have been presented before their employer, JSC.

“It’s quite unfortunate. The refusal will cast aspersions on the character of judges who are not on trial for any offense or complaint. Whoever gave the information to the President should have done so during vetting. Once rejected, these judges will resume their stations, but with a blot or question on their integrity. It is tricky because the public must have confidence in their integrity when they appear before them,” Kilonzo Jnr says.

University of Nairobi law lecturer Kennedy Echesa suggested that President should fire his appointees in JSC and not turn his guns on the entire Judiciary for their failure to consider the adverse information while interviewing the applicants.

“Uhuru has consistently demonstrated his dislike for judicial independence. The Court of Appeal representative on JSC, Justice Warsame, took up his position after the court ruled against Kenyatta’s reluctance to swear him in. Kenya is a functional democracy with independent institutions. No one arm of government is superior to the other. The President should first fire his nominees to JSC and the Attorney General if he doesn’t have trust in JSC,” Echesa says.

The don claimed the current standoff is part of President’s warning to revisit the Judiciary after the Supreme Court nullified his election in 2017.

“The Judiciary has not and will never seek to direct other arms of government on how to perform their functions. In the same vein, we will not allow anybody to dictate to us how to discharge our mandate as given by the people under the Constitution,” Justice David Maraga said following Uhuru’s criticism.

“Politicians should get back to the people for a referendum if they feel there is no need of having the Judiciary.”

Former East Africa Law Society president James Mwamu said the president acted in bad faith by rejecting the appointed judges arguing that he should gazette the names and recommend a tribunal against those he believes are tainted.

“The President is not being sincere in his response. It is a fact that once JSC shortlists candidates, they receive a report from the National Intelligence Service about the conduct of each candidate. If the judges had any issues then NIS could have notified JSC to reject their application,” says Mwamu.

Constitutional crisis

According to Mwamu, the President has four representatives in the JSC, including the Attorney General who would have raised issues before the names were forwarded to him.

He added that if it was based on inability to pay the judges then the President should ask for more time for the Government to source for additional funds.

Law Society of Kenya President Allen Gichuhi said they had requested copies of the petition and Head of Public Service Joseph Kinyua’s affidavit to make a decision.

“Mr Kinyua’s affidavit raised disturbing claims which we will investigate if indeed it was true some information about the judges were suppressed so that it doesn’t reach the JSC commissioners. We will make our position on the dispute known once we join the court case,” says Gichuhi referring to Kinyua’s affidavit on behalf of the president.

Ojienda: The President is creating an unnecessary constitutional crisis. [File, Standard]

He added that LSK will not take a position on the dispute until they consult with senior lawyers who will advise on the way forward.

Immediate former LSK representative to JSC Prof Tom Ojienda argued that the President was creating an unnecessary constitutional crisis when there are other means his concerns can be addressed by initiating a process to remove the judges.

“These are judges and will remain so even if they are elevated to the Court of Appeal. It does not mean nothing can be done if they have integrity issues as the President or any other person can petition the JSC and have a tribunal formed to remove the judge,” says Ojienda.

The JSC, he says, gave a 30-day period for anyone to raise issues of integrity against the judges, and that they cannot reopen the vetting process after submitting the names.

He says the President’s role in the appointment process is provided in the Constitution and the only thing he can do is to gazette the names, swear in the judges and make formal complaints about their conduct to initiate the process of removal.

Lawyer Otiende Amollo said the President’s role in the appointment of judges was largely ceremonial.

“While there may be reasons, some of them legitimate, as to why the President may have reservations about certain nominees, he has no option where the Constitution requires him to act,” he says.

The Rarieda Constituency MP added: “There should be clearer and closer consultation between agencies and the JSC when considering names before their recommendation. If there are legitimate reasons to bar one from being appointed they can still be challenged later. Nothing stops a judge from being prosecuted both by JSC and LSK.”

Nzamba Kitonga: The executive was represented in the judges' interviews as applicants are required to be cleared by the  EACC.[File, Standard]

Senior lawyer Nzamba Kitonga pointed out that it previously took the court to compel the president to appoint another pool of judges after he declined to do so.

Mr Kitonga, who chaired the Committee of Experts that wrote the Constitution, said the Executive is represented in the interviews as applicants are required to be cleared by EACC, DCI and KRA. There is also the Attorney General and two members of the public who are presidential appointees.

“What is welcome this time round is that he said that he is going to court to have the appointment of the affected individuals be quashed. This will open a new frontier by asking the court to quash the appointments of those alleged to have integrity issues and they will be given an opportunity to respond,” said Kitonga.

Both the Chief Justice and Judiciary’s Chief Registrar Ann Amadi said they could not comment on the issue as it is pending in court.