The Law Society of Kenya (LSK) has appointed a team of lawyers to challenge the changes made to Judicial Service Commission (JSC) Act, through the Statute Law (Miscellaneous) Amendment Bill, 2015.
LSK chairman Erick Mutua said lawyers Nzamba Kitonga, Tom Ojienda, Peter Wanyama and Michael Muchemi will today file a petition in court to stop the amendment from taking effect.
“We want to act as soon as possible so that the Constitution is not interfered with through draconian bills,” said Mutua.
The amendments gives the President and the National Assembly powers to appoint the Chief Justice and Deputy Chief Justice. LSK argues that the move is unconstitutional as it takes away the independence of the Judiciary, contrary to Article 166 (1) and faulted the amendment done through an omnibus bill.
Former Committee of Experts member Bob Mkangi finds the changes a blatant abuse of the Constitution.
“The judiciary was restructured to prevent interference by the Executive. We wanted a Judiciary that is accountable to Kenyans. JSC is becoming a selection panel, instead of a hiring authority,” regretted Mkangi. The Constitutional lawyer warned, “The appointment of the Chief Justice and Deputy Chief Justice will not turn out to be a President and National Assembly affair.”
LSK council member Aggrey Mwamu also voiced his concerns on the matter, saying the amendments must be opposed. He said this is how the 1963 constitution was mutilated through piecemeal amendments to the Statutes, declarations which were later ratified by Parliament.
“We cannot allow this Constitution to be taken through that route. Also an Act of Parliament cannot tell JSC how to recommend names when the Constitution has given it powers to do so. Article 166 talks of the appointment procedure, “stressed Mwamu, questioning the timing of the changes when the position of Dr Mutunga and Rawal are expected to be filled this year.
In the new law, the commission’s secretary will be required to submit three names of the nominees to the president to pick one name from the list for consideration and approval by the National Assembly.
If the House disapproves the nomination of such a candidate, the present will forward another name from the pool of names submitted by the JSC and when all three are rejected, the commission will undertake a new recruitment.
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