High Court orders Uhuru to appoint judges he rejected

Friday, October 22nd, 2021 00:00 |
(From left to right) justices George Dulu,William Musyoka and James Wakiaga at Milimani law courts when they ruled on the appointment of six judges yesterday. Photo/PD/Charles Maathai

The country is staring at a constitutional crisis after the High Court ordered President Uhuru Kenyatta to appoint six judges whose promotion he had rejected.

A three-judge bench ruled that the six would be deemed to have been appointed should the President fail to appoint them within the next 14 days.

The President had rejected the promotion of the judges in June when he appointed 34 out of 40 who had been picked by the Judicial Service Commission (JSC).

“The Chief Justice, in conjunction with the Judicial Service Commission, will be at liberty to take all the necessary steps to swear them in, subsequent to them being deemed appointed,” ruled the judges.

According to Justices William Musyoka, James Wakiaga and George Dulu, the President does not have powers to amend the list of judges recommended by JSC.

“The Constitution commands the President to appoint the judges upon receiving their names and has repeatedly said there is no discretion on his part to select a partial list of names,” the judges ruled.

The six, High Court judges George Vincent Odunga, Joel Ngugi, Weldon Korir and Aggrey Muchelule and magistrates Evans Makori Kiago and Judith Omange were left out when the President appointed their colleagues.

Odunga, Ngugi, Korir and Muchelule had been promoted to the Court of Appeal while Makori and Omange had been promoted to the High Court.

Last evening, following the court’s directive, lawyers warned that the country was courting a constitutional crisis with two arms of government, the Executive and Judiciary, taking on each other.

Lawyers Prof Tom Ojienda and Prof George Wajackoyah said the latest order was likely to drive the country into a “messier situation than the one they are trying to solve”.

Prof Ojienda said Article 166 (1) (B) of the Constitution is categorical on the role played by the President in the appointment of judges.

“The section of the article clearly states that “the President shall appoint judges in accordance with the recommendations of JSC.

That word ‘shall’ clearly means that it is mandatory for the President to make the appointment,” Prof Ojienda argued.

Prof Ojienda said that yesterday’s ruling appears to be unconstitutional since it disregards the role played by the President in the appointment of judges.

“I don’t think the order is out to solve the problem. If anything, they have compounded the very problem they are trying to solve,” said Prof Ojienda.

The lawyer was, however, optimistic that Attorney General Kihara Kariuki would act fast and move to the Court of Appeal to challenge the ruling before the 14 days elapse.

New problem

Prof Wajackoyah warned that the country was creeping into a situation where the Judiciary could be accused of violating the same constitution it is accusing the Executive of contravening.

“The whole thing is messy. The Judiciary cannot try to purport to jump over the Constitution.

The law must be followed. You can’t solve a problem by creating another problem,” Prof Wajackoyah warned.

Another senior counsel opined that if the Judiciary and the Executive cannot reach a consensus on the appointment of the six judges, the only option is to wait for the next administration to appoint them.

“It is something that is unprecedented in this country. Can the judges take office without being appointed by the President?

And what will happen to the swearing in to be administered in front of the President?” questioned the senior counsel who opted not to be identified.

While making the declaration yesterday, the court also ordered the President to pay costs of the suit, saying he was in breach of the Constitution and the JSC Act when he failed to appoint all the judges listed by the commission.

“Having taken the conduct of the first respondent (the President), and having found once again that he violated the Constitution and the Judicial Service Commission Act and the rule of law generally, we are persuaded that the Constitution is not helpless and provides remedies and sanctions against the President,” the three judges said.

They, however, noted that the President was not sued in person but the office he holds. This means the cost will not be met personally by him.

Integrity questions

The bench also noted that the President had a constitutional duty cast on him to appoint judges once their names are forwarded to him by JSC and that duty was owed to Kenyans as the appointments were meant to benefit the people.

“Indeed, there was refusal to appoint on grounds that the nominees had integrity questions yet in the Adrian Kamotho case, the court said that those were issues that the President should not have been raised after JSC had delivered its list,” the judges observed.

In their view, the President disobeyed and failed to abide by the declarations in the Adrian Kamotho Njenga case and the remedy available was the enforcement suit that was before them.

“This court finds it appropriate that the judges be deemed as appointed and the Chief Justice to swear them in and JSC to assign to them duties upon being sworn in,” they ruled.

The petition had been filed by Katiba Institute, challenging the partial appointment of the list of 41 judges given to the President.

It was their argument that selective appointment of judges would undermine the functions and powers of the Judicial Service Commission and the functioning of the Judiciary.

The 41 judges had been interviewed, recruited, and recommended by the Judicial Service Commission on July 2019 as judges of the Court of Appeal, the Employment and Labour Relations Court, and the Environment and Land Court.

One of the nominees, however, died last year in a road accident.

The President had refused to gazette or appoint the recommended judges until June 3 when he appointed 34 judges and rejected six nominees.

The application was opposed by the President, Attorney General, the Chief Justice and Judicial Service Commission.

Lawyer Isaac Wamaasa, who represented the Chief Justice, and the Judicial Service Commission, opposed the application on the grounds that the CJ and JSC have no powers to swear in judges.

He argued that the swearing of judges was a preserve of the President.

The Attorney General argued that in the Adrian Kamotho case, the court did not give any injunctive orders but only gave declaratory orders.

He said that the court specifically declined the prayer to deem the six judges appointed.

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