JSC has final say in appointment of judges

Last week, Court of Appeal Judges serving outside Nairobi were recalled back to the city citing human and financial resource challenges.

The human resources shortfall has been exacerbated by the recent death of Court of Appeal Judge  Otieno Odek and other factors, such as the appointment of Justice Paul Kihara as Attorney General and retirement of Judges Philip Waki, Alnashir Visram, GBM Kariuki, and Erastus Githinji.

In July, the Judicial Service Commission submitted names to the President for purposes of appointment of 11 Court of Appeal Judges in accordance with the laid down procedure.

However, to this day, the president has declined to appoint them citing adverse reports touching on some of the nominees by National Intelligence Service (NIS).

The list that was presented contains names of some of the boldest and most accomplished judges who have not shied away from issuing orders stopping executive and legislative excesses on issues that potentially violated fundamental human rights, leadership and integrity, accountability and electoral justice.  

The judges nominated include Lady Justice Mumbi Ngugi, Justice George Odunga, Justice Joel Ngugi, Justice Weldon Korir, Justice Aggrey Mchelule, Justice Msagha A Mbogholi, Justice Francis Tuiyot, among others.

The Judicial Service Commission (JSC) and the Law Society of Kenya (LSK) have insisted that if indeed the NIS had issues with some of the judges,it should have submitted the reports to the commission during the interview and selection processes. Besides, these are sitting judges who are still handling cases and are not facing any disciplinary proceedings.

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In 2016, the LSK successfully challenged an amendment to the JSC Act regarding the appointment of the Chief Justice (CJ) and the Deputy Chief Justice (DCJ). It proposed that the JSC advertises, shortlists, interviews, grades and sends three names to the President for him to select one out of the nominees and forward it to parliament for approval.  

The court pronounced itself that the amendment would mean that the decision on who becomes CJ or DCJ lies somewhere else, meaning that the JSC would no longer have the discretion in the appointment of the two senior-most officials of the third arm of government - thereby offending the principle of separation of powers.

It went further to elaborate that the presidential role in the appointment of judges was ceremonial.

In the past few years, the president has sat on the appointment of High Court judges and the election of Justice Warsame as the Court of Appeal representative in the JSC.

In the Warsame case, also filed by the LSK, Justice Mwita found that an administrative action such as the President’s appointment cannot hold a constitutional process hostage.

The court further declared Warsame as a duly appointed a member of the JSC by virtue of his election.

Which begs the question, why is the executive arm of the government frustrating the judiciary? Is the government fermenting a constitutional crisis in Kenya?

A constitutional crisis is a conflict in the function of a government that the political that the constitution is perceived to be unable to resolve. In the Justice Warsame situation, the courts compelled the Chief Justice and JSC to facilitate Warsame to take his position at the commission. In other words, the gazettement, which is a statutory requirement was bypassed.

Increasingly, the blockage by the executive is causing erosion of laid down procedures which should not be the case.

It is noteworthy that the National Treasury recently attempted to drastically slash the judiciary’s budget prompting the Chief Justice to protest on national TV. Yet budget allocation is the sole province of the National Assembly and not the executive.

All three arms of government should stick to their lanes and work within the constitutional and statutory confines and respect separation of powers which refers to the division of government duties and responsibilities into separate branches to prevent anyone from exercising the functions of another. 

The intent is to provide for checks and balances because of the inherently corrupting nature of concentrated and unchecked power.

Parliament, made up of the Senate and the National Assembly, is responsible for enacting laws and allocating monies; the executive is responsible for implementing public policy and protecting life and property; and, the judiciary is responsible for interpreting the constitution and laws and administering justice.

Constitutional commissions and independent offices such as the JSC also play important roles in safeguarding certain important hot-button issues. The JSC is essentially meant to safeguard the independence, integrity and professionalism of the judiciary.

As such, the JSC and the judiciary cannot afford to let slip their hard-earned independence.

Our current constitutional design seeks to buttress and protect the Judiciary from State capture.

Item 11 of the Building Bridges Iniative (BBI) report notes Kenyans disrespect of the law at all levels, especially public officers who refuse to implement laws or to properly discharge duties placed on them by law or disobey court orders. It proposes that they should be appropriately punished.

In the spirit of BBI, the executive should immediately gazette the names of all the judges because it is what the constitution and the law dictates.

Mr Kiprono is a constitutional and human rights lawyer. Email: [email protected] Twitter: @kipdema

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