Kabogo challenges legality of JSC, its powers

By Evelyn Kwamboka

Juja MP William Kabogo has moved to court to challenge the appointment of Judicial Service Commission members.

Kabogo did so after discovering a technicality in the new Constitution may bar JSC from appointing Chief Justice Evan Gicheru’s successor.

High Court judge Daniel Musinga is to deliver a ruling today on whether JSC should be stopped from carrying out its duties, pending hearing and determination of the case.

"The application raises weighty issues and requires careful consideration because it has far reaching ramifications," he said.

Kabogo, who discovered the anomaly two days ago, asked the court to issue interim orders stopping JSC members led by Justice Riaga Omolo from carrying out their duties.

"If JSC members are allowed to appoint the new CJ, it would be an illegality," he said.

Inconsistent laws

Kabogo said JSC had no powers to appoint the new CJ or carry out any judicial functions because President Kibaki appointed its members based on inconsistent laws.

Article 171(4) provides that members of the commission, apart from the CJ and Attorney General, shall hold office, provided they remain qualified for a term of five years and shall be eligible to be nominated for one further term of five years.
However, Section 20(3) of the Sixth Schedule states that to ensure continuity of JSC’s Article 171(4), the Court of Appeal judge shall be appointed under Article 171(4)(c) and the High Court judge under Article 171(40(d).
Through his advocate Nick Ndichu, Kabogo said Article 171(4) does not have (c) and (d), hence making President Kibaki’s JSC appointments null and void.

The court was told an amendment of this anomaly would only be done by a referendum, as stipulated in the Constitution.

Article 255(1)(g) of the Constitution states that a proposed amendment to the Constitution shall be enacted in accordance with Article 256 or 257, and approved in accordance with Clause (2) by a referendum, if the amendment relates to the independence of the Judiciary and the commissions and independent offices.

Abuse of court process

In the petition filed at the High Court registry, Kabogo is seeking a declaration that the appointment and constitution of JSC is unconstitutional, null and void.

He is also seeking a declaration that unless Article 171(4) or Section 20(3) of the Sixth Schedule is amended, JSC members will be unconstitutionally in office.

But lawyer Harun Ndubi asked the court to dismiss the case, saying it was an abuse of court process.