Court rules Uhuru broke law, orders him to appoint judges

The High Court has ruled that President Uhuru Kenyatta violated the Constitution by failing to appoint 41 new judges. High Court Justices James Makau, Lydia Achode and Chacha Mwita said the Head of State had no option of either reviewing, rejecting or reconsidering the list of nominees submitted to him by the Judicial Service Commission (JSC) in July and August last year.

Consequently, they ordered the president to appoint the judges within 14 days.

“JSC’s decision is not subject to review or second-guessing by the president. He cannot approve or disapprove the appointments. Once the appointments are finalised, the president has no role other than putting in place formalities for appointment.

“Once JSC has made recommendations, the president cannot review, refuse to appoint, reconsider or select who to appoint. He is therefore bound to appoint the people recommended to him,” the judges declared.

The president, through the Attorney General, had argued that he could not appoint some of the judges as they allegedly had tainted images and that there was no money to hire judges.

The Head of State said that the country’s spy agency, National Intelligence Service, had adverse information against some of the nominees and it would be a breach of the Constitution to appoint them.

He had also argued that the Judiciary had enough workforce, hence there was no need for new appointments.

While dismissing the AG’s argument in the case filed by lawyer Adrain Kamotho, the three judges found that JSC could not have made any adverse findings against the nominees with just a letter from NIS, which did not disclose what they had done.

Condemned unheard

They said the president could not revive the NIS information as interviews had already been closed. They said it would be unfair for the nominees to be condemned without being told what they were being accused and given a chance to respond.

“The process was done in an open and transparent manner. There was no suggestion that those appointed did not meet the criteria.

“There is a suggestion that there were some adverse reports against some applicants but institutions and the people were given an opportunity to raise their concerns. JSC ought to have informed the applicants about the NIS information before making its decision.

“Without disclosure, JSC could not use information it did not have,” the judges ruled.

According to the judges, reports of integrity of judges cannot be classified as they are not issues of national security. At the same time, the court declared that the president’s role in appointing judges is a ceremonial one.

The court said that although the law was silent on how long it he should take to make the appointments, 14 days was reasonable enough for the president to prepare for the swearing-in ceremony.

“The appointment of judges should be as soon as recommendations are sent to him.

“The president is only required to put in place plans to ensure those recommended as judges. This should be within 14 days. The delay is unreasonable and therefore unconstitutional,” they said. In the case, the president faulted the JSC for failing to consider integrity issues before arriving at the names of the nominees.

“The president received adverse reports in respect to some of the persons recommended for appointments as judges after the names of the said judges were published in the media.

“The president believes that the Judicial Service Commission ought to have considered the information while arriving at its recommendation,” the reply filed by the Head of Public Service Joseph Kinyua on behalf of the president said.

Contrary to oath

It continued: “It would be irresponsible and contrary to the oath of office for the president to appoint judges, or indeed any other public or State officers to office where serious questions have been raised about their integrity - more so judges who enjoy security of tenure and whose probity and integrity should be above reproach.”

According to Kinyua, the president is currently collating all information and consulting relevant authorities with an intention of taking both legal and administrative actions.

He argued that the president intends to return the names to JSC for a review. If that is not done, he said, the president will seek court’s help.

“I am aware that the recommendation by the Judicial Service Commission may be subject to review by either the court or Judicial Service Commission in appropriate cases.

“Consequently, it would be remiss for the president to appoint judges without contemplating the impact on the principles of good governance, integrity, accountability, public participation and sustainable development,” the reply by Kinyua read.

According to Kinyua, the JSC was aware the Government was cutting down on its expenditure.