AG accuses three judges of changing Constitution through back door
By Paul Ogemba
| October 27th 2021
Attorney-General Kihara Kariuki has accused three High Court judges of changing the Constitution through the back door to strip President Uhuru Kenyatta off his powers to appoint judges.
The AG, in his appeal to stop six judges rejected by President Kenyatta from assuming office, argued that the decision by justices George Dulu, William Musyoka and James Wakiaga amounted to a constitutional coup by making declarations not backed by law.
Mr Kariuki, in his appeal filed yesterday through Solicitor General Kennedy Ogeto, raised 17 grounds of appeal arguing that allowing the judges to assume office by by-passing the President in their swearing-in will create a constitutional crisis and dent the country’s respect for the rule of law.
“Allowing the High Court decision to stand will mean that the Judiciary has the power to amend the Constitution through the back door. Their judgment was an illegality, with no perceptible origin in the words or design of the Constitution,” said Mr Ogeto.
The AG’s appeal means that President Kenyatta has no intention of appointing the six judges within 14 days as ordered by the High Court. He also wants the Court of Appeal to stop Chief Justice Martha Koome from swearing them in when the 14 days lapse.
“The judges could not purport to address a constitutional transgression with another constitutional transgression as it amounted to solving a mistake by doing another mistake. They failed to appreciate that the High Court has no powers to go outside constitutional limits,” said Ogeto.
Justices Dulu, Musyoka and Wakiaga last Thursday gave the President 14 days to appoint the six judges, failure to which they will be deemed to have been formally appointed and sworn in by the CJ.
The judges are Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir, who were nominated to the Court of Appeal. High Court Registrar Judith Omange and Mombasa Chief Magistrate Evans Makori were appointed to the Environment and Lands Court.
The High Court had ruled that the President was in violation of the Constitution by failing to appoint the six over integrity questions, which had already been handled by the Judicial Service Commission when they conducted interviews.
According to the judges, there had to be a way out of the constitutional stalemate created when the President appointed 34 judges in June and left out the six since the Constitution did not contemplate a situation where the appointing authority refuses to perform his functions.
The judges stated that since the Constitution does not expressly provide for the place, time and the person to swear-in judges, there is nothing that bars the CJ from performing the function and the judges to be deemed as having been duly appointed to their respective positions.
But the AG asked the court to suspend implementation of the decision pending the hearing and determination of his appeal.
“Unless the Appellate Court suspends the judgement, the six judges once appointed to their respective courts cannot be removed from office, which will render our appeal nugatory,” said Ogeto.
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