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AG to contest order directing Uhuru to appoint six judges

By Paul Ogemba | October 23rd 2021

Attorney-General Kihara Kariuki. [Boniface Okendo, Standard]

Attorney-General Kihara Kariuki on Friday filed an urgent notice of appeal to stop the implementation of a decision that ordered President Uhuru Kenyatta to appoint six judges within 14 days.

The move means that Justices Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir, High Court Registrar Judith Omange and Mombasa Chief Magistrate Evans Makori will wait a little longer before assuming their new roles should the AG succeed in getting the order to suspend the decision.

The AG accused High Court judges George Dulu, William Musyoka and James Wakiaga of going against the Constitution by allowing Chief Justice Martha Koome to swear-in the judges should the president fail to do within two weeks.

“Their decision was a constitutional coup. The Constitution is very clear on who should appoint and swear-in judges; that mandate is a constitutional reserve for the president and cannot be delegated,” said the AG.

Justices Dulu, Musyoka and Wakiaga on Thursday ordered the president to appoint the judges within 14 days and upon the lapse of time, it shall be presumed that his powers to appoint has expired and the six judges shall be deemed to have been formally appointed to their respective courts.

They further ordered that if the president fails to act within the given days, the CJ should take over the swearing-in and ensure the judges assume their new roles as Court of Appeal and Environment and Lands Court judges.

But as the AG filed the notice of appeal to suspend the decision, legal experts argued that the judgment has fixed the president into a corner which he cannot escape.

Senior Counsel John Khaminwa said that the president has no choice but to appoint the six judges within the 14 days, and that the High Court was right in stripping the president his constitutional ceremonial duty if he refuses to obey the order.

“If you have an Executive that is not obeying the law, then the courts are justified to assume the responsibility of ensuring that their orders are not in vain. The president has no option but to appoint the judges to avoid setting a bad precedent,” said Dr Khaminwa.

Senior Counsel Dr John Khaminwa. [Wilberforce Okwiri, Standard]

Lawyer Danstan Omari, who represents the Kenya Magistrates and Judges Association, argued that the decision has put both the president and the Chief Justice in delicate situation which they must balance to ensure the court order is respected.

According to Omari, the president has been cornered and failing to appoint the judges will mean he has abandoned his constitutional duties and surrendered it to Justice Koome.

But Omari added that it will be awkward for the CJ to perform the functions of swearing in the six judges since it will put her in direct conflict with the president and reopen the bad blood which existed between the Judiciary and the Executive.

Law Society of Kenya, Nairobi branch, Chairman Eric Theuri said that the president, just like any other Kenyan, has a right to appeal against the decision but if he fails to get an order suspending the judgement, then he has no choice but to obey the decision.

Theuri added that it will be very embarrassing and untidy situation if it reaches a point where the CJ performs the president’s function in a simple matter that did not have to reach that point.

“The president should not abandon the ceremonial aspect of the Constitution because it will lead us to anarchy and send a message that we are not governed by the rule of law but by the whims of an individual,” said Theuri.

Law Society of Kenya Nairobi branch Chairman Eric Theuri. [Wilberforce Okwiri, Standard]

Lawyer Adrian Kamotho, who was among those who filed the petition to compel the president to appoint the six judges, said that it is not too late for Uhuru to save face by doing the right thing.

Kamotho argued that there is no need for the AG to appeal the decision, adding that there is nothing that can stop the president from pursuing the six judges through the Judicial Service Commission if he has a genuine question on their integrity.

Dispute over the six judges started in July 2019 when the JSC recommended 41 individuals to the president to be appointed as judges of the Court of Appeal, Environment and Lands Court and the Employment and Labour Relations Court.

In February 2020, the High Court issued an order directing the president to appoint the judges but he again declined on account that some of the nominees were not suitable for the positions.

He, however, appointed 34 in June and left out the six, leading to another court case which was determined by the three judges on Thursday.

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