The Supreme Court has stripped the president the powers to appoint elected and nominated members of the Judicial Service Commission (JSC).
A majority of four judges comprising Justices Mohamed Ibrahim, Smokin Wanjala, Isaac Lenaola and William Ouko also declared that the National Assembly has no mandate to vet and approve any member elected or nominated to the JSC.
“To give the President power to appoint or even to purport to appoint by mere gazettement of members of JSC is unconstitutional. There is nothing in the Constitution to suggest the President as the Head of State and Government can appoint elected members of the JSC,” ruled the judges.
They declared that the president’s power to appoint members of the JSC is limited to two persons, a man and a woman, who are not lawyers, to represent the public.
The decision means that the President and Parliament will have no say in JSC Commissioners nominated by Supreme Court, Court of Appeal, High Court, Magistrate’s Court and the Law Society of Kenya.
The judges went further to declare Section 15(2)(b) of the JSC Act which donates to the president the power to appoint elected and nominated members of the JSC as unconstitutional and void for being inconsistent with Article 171 of the Constitution which does not recognise such power.
“The section goes against the letter and spirit of Articles 1(3) and 2(2) which stipulate that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person may exercise state authority without authority,” they ruled.
According to the judges, Article 171(2) of the Constitution does not require that the names of nominees, other than the representatives of the public, be submitted to the president for appointment.
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The dispute leading to the judgment began in March 2018 when Judges of the Court of Appeal re-elected Justice Mohammed Warsame to represent them at the JSC and his name forwarded to former President Uhuru Kenyatta to appoint him.
The former president, however, forwarded his name to Parliament for vetting and approval before making the appointment.
Justice Njoki Ndung’u, however, had a dissenting opinion where she declared that the president should have a role in appointing of JSC commissioners.
Chief Justice Martha Koome and her deputy Philomena Mwilu did not sit on the Bench.