The Law Society of Kenya (LSK) has petitioned the High Court over President Uhuru Kenyatta’s failure to appoint all 25 High Court Judge nominees recommended to him by the Judicial Service Commission (JSC).
Through a petition filed by their lawyer Nzamba Kitonga, the LSK wants the High Court to compel President Kenyatta to appoint the remaining 14 nominees.
The President last month approved 11 of the nominees but alleged that he needed more time to scrutinize the suitability of 14 other nominees. He claimed that he needed to be satisfied about the suitability of each candidate, and said he would hold consultations with Chief Justice Willy Mutunga who chairs the JSC.
“It is clear from these statements the President sincerely, but mistakenly, believed that his role under the new Constitution in the appointment of Judges includes vetting, processing, approving, and or disapproving those recommended after some investigations,” LSK CEO Apollo Mboya stated in an attached affidavit.
A mistaken belief, he continued, that has led the President to usurp the role of the Judicial Service Commission to vet candidates for appointment as Judges.
“Perhaps unknown to the President, a thorough and incisive vetting process takes place before the recommendations are made to him. They are subjected to in-depth interviews, professional bodies are asked to provide clearances or disqualifications, clearances are also given by KRA (Kenya Revenue Authority), CID (Criminal Investigations Department), EACC (Ethics and Anti Corruption Commission), NIS (National Intelligence Service) and the Credit Reference Bureau. The Chief Justice actually explained this process in his remarks during the swearing in of the 11 appointed Judges,” Mboya stated.
The President’s role therefore, Mboya averred, was ceremonial to simply appoint, gazette and preside over the swearing in of all the 25 nominees recommended to him by the JSC.
“These Constitutional provisions were deliberately crafted to insulate the Presidency from accusations of partisanship, ethnicity, cronyism and patronage in the appointment of Judges.
"Therefore in purporting to exercise non-existent vetting powers, the President is actually taking the country back to the dark past,” Mboya continued.
The Attorney General has been named as the first respondent, “the first respondent is under a Constitutional duty to ensure the prevention of any default whether by omission or commission. He must therefore disclose the fact of giving appropriate advice to the President and any refusal by the President or any other person to abide by such advice,” Mboya explained.
The JSC is named as the second respondent for its failure to raise the alarm over the five months President Kenyatta took to appoint their nominees and when he did, his piecemeal appointments.
The LSK has prayed for the speedy determination of their petition on the grounds that President Kenyatta is infringing on the public’s constitutional right to the speedy execution of justice and the 14 JSC nominees yet to be appointed have been left in limbo.
“The matter is also extremely urgent because the 14 persons who were not appointed have had their lives disrupted. They are currently neither advocates nor magistrates. Their sources of income have been disrupted thereby affecting their families,” Mboya stated in his affidavit.
In his speech during the swearing in of 11 of the JSC 25 nominees for the position of High Court Justice, Chief Justice Willy Mutunga also called for the speedy appointment of the remaining 14 nominees due to the backlog of cases awaiting adjudication.
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