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Lawyers and civil society challenge Uhuru's decision to drop judges

By Brian Otieno | June 5th 2021
President Uhuru Kenyatta addresses the Nation during 58th Madraka Day celebrations at Jomo Kenyatta International Stadium Kiusmu on June 1, 2021. [Collins Oduor, Standard]

President Uhuru Kenyatta’s refusal to appoint six out of the 40 judges recommended by the Judicial Service Commission (JSC) has kicked up a storm, with a cloud of criticism and near praise trailing his move.

Hours after President Kenyatta announced his decision through a gazette notice, lawyer Adrian Kamotho moved to court, accusing the president of acting in contempt of orders that required him to appoint all the 40 judges. Civil society group Katiba Institute has also challenged the president’s move.

The dust was yet to settle on what was considered to be a scathing attack on the Judiciary in his Madaraka Day address on Tuesday when the president said that the six had failed to meet the “threshold” for appointment.

Among the six are Justices George Odunga, Joel Ngugi, Weldon Korir and Aggrey Muchelule. Others are Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori.

The president has always maintained that there is evidence of impropriety against some of the prospective appointees. In the wake of his bombshell, former JSC vice-chairperson Mercy Deche said that Kenyatta had not protested against all the six whose appointments he had rejected, saying that the list was amended.

“There was a list of persons who were supposed to have adverse reports that were unsubstantiated. But when I compare that list with the one that has been gazetted, I see changes. There are people who have been added through a process that is as clear as mud,” Deche on KTN News Crossfire on Thursday.

Law Society of Kenya (LSK) president Nelson Havi faulted the president on the same show.

“The role of the president is ceremonial. It is limited to gazetting and swearing-in judges recommended by the JSC for appointment,” said Havi.

Legal experts have, seemingly, converged into one corner, bashing the president for what they term as an overreach of his mandate.

Their dissent stems from the question on whether or not the president has the power to depart from the JSC’s recommendations, and its impact on the independence of the Judiciary.

Leading the charge against the president was the Kenya Magistrates and Judges Association (KMJA) and the Law Society of Kenya. In separate statements, the two legal professional bodies termed the rejection of the six as unconstitutional.

“Once the JSC has recommended names for appointment, the president has no power to tinker with the names. Any such attempt amounts to interference with the institutional independence of the JSC, violation of the Constitution and, in particular, the rule of law which the president swore to uphold," the KMJA statement said.

It added: “The decision by the president to leave out the six is therefore baffling, unfounded and unconstitutional. The president is setting a very bad precedent for this country, one of not following the rule of law and disobedience of court orders.”

The LSK statement, signed by CEO Mercy Wambua, was equally hard-hitting.

“This is an outright contravention of the Constitution of Kenya, a blatant disregard of the rule of law and undermines the independence of the Judiciary. We wish to remind the president that the Constitution is the supreme law of the republic and binds all persons and all State organs at both levels of government,” read the LSK statement, which also faulted the president for “continued attacks against the Judiciary”.

Also voicing his concern is Prof Ben Sihanya, one of the key promoters of the Building Bridges Initiative.

“Cherry-picking of judges by the president after JSC recommendations compromises the separation of powers, interdependence, checks and balances as well as accountability of the Judiciary and the Executive in Kenya and Africa,” he said, adding that the president had no option but to act according to JSC’s recommendations.

“His role is nominal, notional and administrative. He does not have veto powers on the JSC,” said Sihanya.

President Uhuru Kenyatta speak at Jomo Kenyatta International Stadium in Kisumu County during today's Madaraka Day Celebrations. [Courtesy]

Bobby Mkangi, a constitutional lawyer who sat on the Committee of Experts (CoE) that wrote the current Constitution, shares the same view.

“It is a nullity because the list had 41 names – now 40 – and he is obligated to swear in the 40. What the president did was improper and unconstitutional. It is not in his place to refuse to appoint judges,” he told The Saturday Standard.

On Thursday, Rarieda MP Otiende Amollo, who sat with Mkangi in the CoE, concurred.

“On this, we must be plain: the president cannot select which judges to gazette after JSC recommendation,” posted the MP, recently considered a rebel within the Orange Democratic Movement party, on Twitter.

Waikwa Wanyoike, a constitutional expert and the co-founder of Katiba Institute, weighed in on the matter on social media.

“There is no judicial independence without a judge's individual independence... and what Uhuru has done by cherry-picking judges to appoint is the greatest affront to a judge's individual independence. How Chief Justice Martha Koome deals with this matter could either sink or keep afloat Kenya's last institution of hope,” he said.

But Uhuru's move has been praised by his allies, including some roped in through his handshake with former Prime Minister Raila Odinga.

“Thirty-four are better than none. The Court of Appeal was stretched to the limit, rendering it unable to dispense justice. Even if we go two steps forward and one step backwards, we are still advancing,” said Suna East MP Junet Mohamed.

Junet, however, said the aggrieved parties, who had taken the matter to court in the first instance, should seek legal redress if they feel that the law was violated.

“Was the order served to the president? If it was, then those who took the matter to court should go back to court so that we can move to the next step,” he said.

Appearing on KTN News Crossfire on Thursday, Orange Democratic Movement chairperson John Mbadi and Igembe North MP Maore Maoka also defended the appointments.

 “I think it is a step forward because out of the 40 judges, 34 have been appointed,” said Maore.

“The question we need to be asking is: If the JSC has processed (made recommendations) and people have integrity issues, what is the president supposed to do?,” said Mbadi.

Last week, Attorney General Kihara Kariuki faced criticism from the Senate Committee on Justice Legal Affairs and Human Rights over the president’s previous reluctance to appoint all the 40 judges.

Nyamira Senator Okong’o Omogeni wondered why the president acted in violation of court orders.

“Is there a stay on the order to appoint the judges?” Omogeni asked Kariuki and Solicitor General Kennedy Ogeto, who responded by saying that the matter was in court.

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