Kenya Judges and Magistrates Association (KJMA) has faulted the move by President Uhuru Kenyatta to reject six of the 40 judges recommended by Judicial Service Commission (JSC).
According to a statement released by KJMA , the Judicial Association says the President violated the constitution by failing to appoint the list of judges nominated by the commission as presented without any alteration or omission.
They learned friends cited petition Number 369/19, in which the High Court of Kenya had earlier pronounced itself on the matter that the President was constitutionally bound by the recommendation of the JSC to approve the list of 41 nominees.
They argued that in Article 166(1) as read with article 172(1)(a) of the Constitution on the persons to be appointed as judges; the Head of State was obliged to appoint all the nominees recommended as judges failure to which he risked violating the Constitution under the Judicial Service Act.
In the statement signed by its secretary general Derrick Kuto, KMJA says the President has no power to leave other judges out of his appointment who were sworn in at State House barely 24 hours after they were gazetted.
“The shocking turn of events in which the President declined to appoint six (6) of the judges nominated by the JSC is unconstitutional. All the six are currently serving on the bench,” read part of the statement signed by Kuto.
Kutu noted that the President was to appoint all the judges as recommended, adding that the decision by President Kenyatta to leave out the six is therefore baffling, unfounded and patently 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, ” reads part of the statement.
The association further added that the President is setting a bad precedent for this country, one of not following the rule of law and disobedience of court orders.
“It is against this background that KMJA calls upon the President to respect the rule of law,” read the release in part, adding that Kenyans overwhelmingly voted for the current constitution and gave the JSC powers to recommend judges for appointments.
The statement further read that prior to the promulgation of the Constitution of Kenya 2010, the President had power to appoint judges but Kenyans voted to have a constitution that gave JSC the power to recommend judges for appointment by the President.
“The JSC, in exercise of its mandate under the Constitution and the Judicial Service Act, nominated 41 judges for appointment to the Court of Appeal, Employment and Labour Relations Court and Environment and Land Court. One has since passed on. May his soul rest in peace,” he said.
The statement concluded that the continued delay to appoint the persons recommended for appointment as judges of the respectful courts was and still remains a violation of Articles 2(1), 3(1), 10, 73(1)(a), 131(2)(a), 166(1), 172(1) and 249(2) of the Constitution.
In related news, Katiba Institute has filed an application contesting the appointment of 34 judges and omission of six others by President Uhuru Kenyatta.
The institute termed the move by President Kenyatta as cherry-picking, saying the swearing in of the 34 would violate the Constitution as well as the rights of the remaining six.
Katiba, in an application filed through lawyer Dudley Ochiel today, argued that Article 166(1) commands the President to appoint judges of superior courts in accordance with the recommendation of the Judicial Service Commission (JSC).
President Uhuru Kenyatta yesterday appointed the judges who were recommended by the Judicial Service Commission (JSC) more than two years ago.
In a Gazette Notice dated June 3, the Head of State appointed 34 judges from the 41 who had been nominated by the JSC but declined to appoint Justices Weldon Korir, Aggrey Muchelule, George Odunga and Prof. Joel Ngugi.
Makori Evans Kiago and Judith Omange Cheruiyot nominations were also declined and referred back to the Commission.
By Alice Gworo
