President Uhuru cannot pick Chief Justice of his choice, now court declares

From right: Chief Justice Willy Mutunga, Chief Registrar of the Judiciary Ann Amadi and Deputy Chief Justice Kalpana Rawal. The CJ is set to retire on June 16. [PHOTO: FILE/STANDARD]

President Uhuru Kenyatta yesterday suffered a blow after the High Court ruled that he will not have the leeway to pick a Chief Justice and the deputy of his choice.

The court found the President’s say on CJ’s and DCJ’s appointment was limited to just accepting a single name after it invalidated a law passed by Parliament giving him powers to pick his choice from three suggestions of nominees passed by the Judicial Service Commission’s (JSC) selection panel.

The House changed section 30(3) of the JSC Act but the court criticised the move, noting that allowing the President to participate in the process was giving the executive undue influence on who would be the head of the Judiciary.

 During the landmark ruling, judges Richard Mwongo, Joseph Onguto, Isaac Lenaola, Mumbi Ngugi, Weldon Korir and George Odunga noted that the President was already represented by the Attorney General in JSC, thus allowing him to nominate a person of his choice would amount to ‘having a second bite in the cherry’.

The amendment by Parliament last year to the Judicial Service Commission Act came to effect at a time when Chief Justice Willy Mutunga is poised to retire and his deputy Kalpana Rawal is fighting a retirement age hurdle in court.

The race to succeed Dr Mutunga and his deputy had taken a new spin, with complaints from the Law Society of Kenya that the National Assembly slipped in clauses in the law to take away the Judiciary’s independence.

The legislative amendment also elicited angry reactions from experts, who warned that Kenya risked losing constitutional and democratic gains envisaged by the 2010 Constitution if the Executive and Legislature were not stopped from passing laws that breach the supreme law and cripple independent arms of Government.

 Mwongo and Onguto read the ruling on behalf of the other judges, noting the initial drafted bill was meant to change the time that the JSC secretary is supposed to pass the nominee’s name to President and not how many people ought to be forwarded to him.

The two judges noted the amendment was introduced on the floor of the House against its own standing orders.

“The published bill did not contain three persons to be forwarded to the President. This was introduced on the floor of the House, which was not procedural and against the standing orders,” the judges declared.

Justices Mwongo, Onguto, Lenaola, Ngugi, Korir and Odunga said Parliament erred by enacting the amendments as it sought to direct JSC on how to conduct the selection process for the CJ and DCJ, which amounted to an illegality.

The judges also disagreed with the amendments and criticised the MPs for giving timelines within which the CJ and DCJ should be appointed.

They ruled that under the 2010 Constitution, the establishment of the Judiciary and other constitutional commissions and other arms of Government must be subject to public scrutiny to enhance transparency, integrity and accountability.

By directing that Parliament forwards three names of nominees to the President for consideration, the judges said it meant the President would be conducting another sub-selection contrary to the provisions of law.

“We declare the amendments as unconstitutional since the issues raised are of great public interest. If the amendments are to be adopted, then the discretion of JSC to determine who the suitable nominee is for CJ and DJC will cease to its prerogative but will rest with the President’s powers,” the judges ruled.

They said Kenyans wanted a radical departure from the old system and that was why there were fears that due to the amendments, the independence of the Judiciary could be in doubt.

“Giving the three names of nominees to the President gives an avenue for manipulation of the process of appointing the CJ and DCJ,” they said.

The court stated that the drafters of the Constitution had in mind the separation of powers and the duty of the appointments of judicial officers was a preserve of the JSC and must not be influenced by the Executive and the Legislature.


The judges said the Attorney General is among the President’s representatives who sit in the JSC and therefore the Executive cannot play double roles in the appointment of the CJ and DCJ.

The judges ruled that in the 2010 Constitution, the country adopted a Presidential system and in the event he does not have majority MPs in the National Assembly, he may be held at ransom in having the three names approved.

“The hopes and aspirations of Kenyans to have an independent judiciary will be thwarted in the event the courts adopted the amendments passed by Parliament,” they said.

The judges argued that statute law miscellaneous amendment bills were only meant to introduce minor and non-controversial amendments to the Constitution and the National Assembly failed to take that into consideration prior to the changes.

On the issue of public participation, the judges held that other than the debates in Parliament, Kenyans ought to have been allowed to participate in the process. They said the right to public participation is internationally recognised under the Universal Declaration of Human Rights.

“To promote the spirit of a democracy, Parliament should have facilitated the process of public participation as it is an expression of sovereignty of the people in the conduct of public affairs,” they said.

The court noted that ‘tweets’ on the bill were not enough announcements that Kenyans were required to participate in the amendment process.

The judges noted that Parliament erred by introducing changes in the JSC Act through a miscellaneous amendment bill. The ruling read that miscellaneous bills were meant for minor house keeping matters and changing those that had no contention, thus JSC Act ought not to have been introduced under this.

However, Majority Leader Aden Duale (Garissa Township) expects the Attorney General Githu Muigai to appeal the court ruling to open the door for President  Kenyatta to appoint the next CJ.

But CORD praised the judges and said Jubilee “ought to have known better”.

“They cannot change the law so that they get a user-friendly CJ. It is good the court has stopped them. They ought to know that tyranny of numbers can only go so far. We told them it was unconstitutional, now it seems only the Judiciary can be our saviour,” said Deputy Minority Leader Jakoyo Midiwo (Gem).

The Law Society of Kenya said the ruling was a win for the Constitution.