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Koome vetting: Will MPs face up to Uhuru on appointment of 40 judges?

By Kwamchetsi Makhoha | May 3rd 2021
Judge Martha Koome at the Supreme Court building on Wednesday, April 14, 2021, when she turned up to be interviewed for the post of Chief Justice. [Collins Kweyu, Standard]

Parliament will be in sharp focus beginning this week when it gets down to take Chief Justice designate Martha Koome through the final and most critical phase of her journey to heading the Judiciary.

President Uhuru Kenyatta last week surprised the country rather pleasantly when he forwarded Justice Koome’s name to the National Assembly for vetting less than 24 hours after receiving her nomination by the Judicial Service Commission signaling his happiness with the candidate.

Mr Kenyatta’s move was in stark contrast with the 22 months - and counting - period he has subjected the appointment of 41 judges (one has since died) for the Court of Appeal, Environment, and Land, and the Employment and Labour Relations courts since July 2019.

House Speaker Justin Muturi last week introduced the nominee to the house and gave the parliamentary Justice and Legal Affair Committee (JLAC) 28 days to vet Judge Koome and report to the whole House.

This affords parliament an opportunity to unlock the impasse over the appointment of the 41 judges. Members of Parliament can take the view that since Judge Koome and the 41 judges recommended for appointment two years ago emanate from the same source, and emerged from similar public interviews, their processing also deserves equal treatment.

It should not be lost to the National Assembly that the pending appointment of the 40 judges has this far defied court orders, upstaged diplomacy, and put the past head of the Judiciary in an open fight with the president. 

In fact, Mr Kenyatta’s obstinacy in the appointment of judges has persisted despite a February 2020 three-judge High Court bench’s finding that he is in violation of the Constitution in failing to gazette the 41 judges and having them take the oath of office.

Refusal to appoint the 41 was not the president’s first, coming as it were after nearly a year’s wait to gazette the election of Justice Mohammed Warsame as the Court of Appeal’s representative to the JSC following the judge’s re-election in 2018. It was the High Court that was once again left with the obligation of unlocking the stalemate when it ruled in 2019 that Judge Warsame could take office as a member of the JSC without presidential gazettement.

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Former Chief justice David Maraga (left) and President Uhuru Kenyatta during the launch of the State of the Judiciary Annual Report (SOJAR), 2019. [Beverlyne Musili, Standard]

That was not all. Earlier in 2014, Mr Kenyatta had launched his onslaught on the Judiciary’s independence with the appointment of 11 judges from a list of 25 while holding back on the other 14.

He would later appoint them only after a five-judge High Court bench declared in May 2016 that “The delay by the President in appointing, swearing-in and gazetting as judges the persons whose names were submitted to him by the JSC on January 11, 2014, was unreasonable and was therefore unconstitutional.”

Mr Kenyatta first picked a fight with the Judiciary in October 2013 when he stalled the appointment of Justice Aggrey Muchelule to the JSC following his election to represent the Kenya Magistrates and Judges Association. It was not until April 2014 when the judge took his oath of office.

Two years later, the National Assembly joined the fray when, in December 2015, it amended the Judicial Service Act and inserted a clause requiring the JSC to forward names of three qualified individuals for the positions of Chief Justice and Deputy Chief Justice to the President for appointment instead of one name for each position – an amendment the JSC rejected and challenged in court.

A five-judge High Court bench struck down the amendment in May 2016, finding that it violated the letter and the spirit of the Constitution.

This is the reason the enthusiasm and speed of a president with just 14 months to the end of his term in getting a new chief Justice appointed while holding on to a large number of judicial officers needed for proper functioning of the courts is raising eyebrows. Mr Kenyatta’s latest deployment of vigour in asserting his influence on the judiciary is giving the process a political hue.

Besides, the State’s hand in filling elective vacancies in the JSC, which bears the responsibility of appointing judges and judicial officers, has in recent months been only thinly veiled.

The recent Chief Justice interviews, for instance, took place without the presence of the female representative of the Law Society of Kenya to the JSC after the High Court stopped the election.

The effect of Mr Kenyatta’s repeated assaults on the Judiciary’s independence was in evidence during the recently concluded interviews for the Chief Justice.

In spite of the plain constitutional provisions and at least two High Court decisions on the long-pending appointment of the 40 judges, all the candidates for the Chief Justice could only pledge to negotiate when asked what they would do to unlock the impasse.

President Uhuru Kenyatta during the launch of the State of the Judiciary Annual Report (SOJAR) at the Supreme Court of Kenya buildings, Nairobi. [Elvis Ogina, Standard]

It remains to be seen whether Members of Parliament will process the Chief Justice’s vetting in total disregard of the long-pending appointment of judges, which has negatively impacted the delivery of justice to ordinary Kenyans – the people whose interest they are in the house to represent. 

Effectively, the impending vetting of the Chief Justice nominee affords the Justice and Legal Affairs Committee of the National Assembly and the entire house have an opportunity to unlock the stalemate over the appointment of the 40 judges.

MPs can restore order and rule of law in judicial appointments by making resolution of the long-pending appointments a precondition for concluding what the president has placed before them.

It is the only way Chief Justice Koome can take office without the encumbrance of political horse-trading with the President.

The National Assembly has only stood up to the President twice in his eight years in office – first when it declined to confirm Dr Monica Juma as Secretary to the Cabinet in March 2015 and most recently when it rejected the nominee for appointment as Principal Secretary in the Ministry of Education in charge of Competence-Based Curriculum (CBC).

The position of Secretary to the Cabinet has remained vacant since Francis Kimemia was removed from the post. The crisis between the executive and the judiciary is a fitting opportunity for the National Assembly to demonstrate that it is no poodle of the presidency.


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