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JSC barred from discussing Uhuru's report on nominees

By Paul Ogemba | June 17th 2021

President Uhuru Kenyatta chats with retired Chief Justice David Maraga as Deputy Chief Justice Philomena Mwilu listens after the swearing-in of new judges of the High Court at State House on December 19, 2016.[PSCU,Standard]

The High Court has stopped the Judicial Service Commission (JSC) from acting on President Uhuru Kenyatta’s report on the six judicial officers he failed to appoint.

Justice James Makau also temporarily stopped the investigation, prosecution or consideration of any petition to remove the six pending the determination of a suit filed by lawyer Benard Okello.

“This court prohibits consideration, publication and making public a report by the President to the JSC on the refusal to appoint the six nominees or any other report that is injurious to their integrity as judicial officers,” ruled Makau.

The judge further barred the commission from convening any meeting to deliberate on the adverse reports against the six.

President Kenyatta on June 3 appointed 34 out of 40 judges that had been recommended by the JSC, leaving out Justice Joel Ngugi, Justice George Odunga, Justice Aggrey Muchelule and Justice Weldon Korir who had been nominated for the Court of Appeal.

Also rejected were the Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori, who had been nominated for the Environment and Lands Court.

According to the President, the six did not meet the threshold for appointment. The decision has caused controversy.

Several individuals and institutions including former Prime Minister Raila Odinga, Chief Justice Martha Koome and the JSC have asked President Kenyatta to table his evidence against the six to avoid speculation over their integrity.

But lawyer Okello in his petition argues that the report should not be made public, and instead wants the court to compel Uhuru to appoint them.

According to Okello, the President cannot purport to vet the nominated judicial officers afresh by submitting a report on their integrity when the JSC had already vetted them during the interviews for the positions they applied for.

“The president refused to appoint the six in total disregard of the constitution. He had no powers to vet the Court of Appeal nominees since that function had already been performed by the JSC,” says Okello.

He submitted that the President is denying thousands of Kenyans the right to access justice by refusing to appoint the six, who would have helped reduce cases backlog.

“The President discriminated against the six by handpicking others and denying them opportunity to serve despite being qualified for the positions. He cannot purport to do investigations and report back to the JSC with the aim of tainting the image of the six,” he says.

The petitioner argues that the President has no authority to direct the JSC in the performance of their duties, and that his decision to refer back the nomination of the six to the commission amounts to undue pressure and interference with their work.

Okello’s suit is the fourth seeking to compel the President to make the appointments. Others were filed by lawyer Adrian Kamotho, Katiba Institute and Dr Benjamin Magare.

They all argue that the President discriminated against the six when he has no authority to decide who joins the Bench as was ruled by the High Court in February last year.

The petitioners claim that President Kenyatta’s decision is calculated to frighten, intimidate, manipulate and arm-twist judicial officers who have been giving unpopular but lawful decisions against the Executive.

Justice Makau directed the JSC and the Attorney General to respond to Okello’s petition within 14 days, and set the hearing for July 5.

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