Constitutional lawyer Yash Pal Ghai and the Law Society of Kenya have accused President Kenyatta of breaking the law in appointing judges and members of the Judicial Service Commission.
Ghai accused the president of delaying in appointing the JSC members as well as interfering with the independence of the Judiciary.
"The JSC makes recommendations and the President appoints. The list does not go to Parliament, as many other types of appointments. The reason for this rule was to enhance the independence of the judiciary, given its subordination by previous presidents." said Ghai.
On Friday president Kenyatta approved the appointed of 11 high court judge from the 25 proposed to him by the JSC. The president said the the appointment of the remaining 14 were still on going.
Ghai said appointment of the members of the JSC and the judges is not like other ordinary appointments where the list of nominees was subjected to approval of the parliament. He said, judiciary is an an independent body and therefore subjecting its members to parliamentary approval would contravene the constitutional requirement of the Independent Judiciary.
He said the president had failed to appoint the three JSC members who were elected or nominated by different constituencies close to a year contrary to the constitutional requirement of three days despite the list of nominees being taken to him six months ago.
“He has not so far appointed any of the three nominees to the Judicial Service Commission who are elected or nominated by different constituencies (presumably he is still studying the list),” he said.
Ghai said despite the plea by JSC and Law Society of Kenya to have the judges appointed to smoothen the functioning of the judicial system, the president had not responded.
Ghai's sentiments were echoed by the Law Society of Kenya chairman Erick Mutua who said the president had no powers not to appoint all the nominees forwarded to him by the JSC. He termed the president's partial appointments of the high court judges as executive interference with the judiciary.
"By approving a few names and leaving others implies that the president is exercising authority over the judiciary. This is unconstitutional," he said.
Mutua said the president was going back to the old days where the presidents exerted authority over the judiciary.
"We are going to court to oppose this." he said adding that they had picked lawyer Nzamba Gitonga to file the case on their behalf.
The Star
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