Angry reactions greet move to give President Uhuru Kenyatta powers to appoint CJ

From left: Lawyers Nzamba Gitonga, Eric Mutua and Tom Ojienda at the Milimani Law Courts where the High Court has declined to suspend a law that gives the President powers to appoint the CJ. [ PHOTO: GEORGE NJUNGE/STANDARD]

NAIROBI: Experts have reacted angrily to amendments giving the President powers to appoint the Chief Justice and his deputy.

Lawyers and constitutional scholars have warned that Kenya risks losing constitutional and democratic gains endorsed in the 2010 referendum if the Executive and Legislature are not stopped from passing laws that breach the supreme law and cripple independent arms of government.

The country is 18 months away from a General Election and the position of Chief Justice and that of Deputy Chief Justice will be critical in case of a presidential election dispute.

Similarly, observers are reading sinister motives by the Executive in its role in appointing the Inspector General of Police and deputies warning that the independence of the police will be weakened or abused to serve political interests.

Lawyer Gitobu Imanyara said the move was tantamount to an abuse of office and cautioned that without a body that oversees implementation of the Constitution, many gains were bound to be eroded unless the Executive and the Legislature are checked.

"Kenya does not have the Commission for the Implementation of the Constitution (CIC) in place after the expiry of the term of Charles Nyachae-led commission and it is dangerous to allow President Uhuru Kenyatta and a section of MPs to mutilate the Constitution unchecked," Mr Imanyara said.

The Kenya Law Reforms Commission (KLRC), which assumed the roles of CIC has since distanced itself from the new law. KLRC chairman Mbage Ng'ang'a said the commission was not consulted and demanded answers from Attorney General Githu Muigai on how amendments contravening the Constitution were arrived at.

Lawyer Ahmednassir Abdullahi described amending the JSC Act as circumventing the expression provisions of the Constitution by dark forces.

"Where will Uhuru take all the powers he alllocated himself? JSC will now send three names to the President and he picks one and this violates article 166 (1) of the Constitution.

The article says; a) The President shall appoint CJ and DCJ in accordance with recommendation of the Judicial Service Commission, and subject to approval of the National Assembly.

b) the President shall appoint all other judges, in accordance with recommendation of the Judicial service Commission.

The security of tenure of the CJ and DCJ have been grabbed and the risk that the President can appoint and dismiss them at will returns.

"We have abolished the judicial independence and restored an imperial president," Makau Mutua said.

The Law Society of Kenya filed a case at the High Court to guard against a fresh assault on the Constitution and particularly the Judiciary.

Meanwhile the Judicial Service Commission now says it was neither involved nor consulted when controversial amendments on the appointments of the CJ were made.

Tom Ojienda, a member of the Judicial Service Commission, criticised the amendments terming them as unconstitutional and seeking to restore Executive control over the courts.

He said the amendments on the appointments of the Chief justice and Deputy Chief Justice are a total breach on the independence of the Judiciary and makes a mockery of the peoples' sovereignty.

"It seeks to subject the JSC to the direction and control of Executive in the discharge of its constitutional mandate," Prof Ojienda, who represents the Law Society of Kenya at JSC said.

The amendment has far reaching constitutional implications. He said there was no public participation in the amendments as required by law.

"It begs an explanation as to why it is to apply only to the appointment of CJ and Deputy CJ and not all judges in which case it is discriminatory and introduces a procedure for appointment of judges which is not envisaged by the Constitution," he said.