Why Uhuru has yet to appoint 41 new judges
Links to Coast drug barons, integrity questions and complex ethnic arithmetic are some of the reasons President Uhuru Kenyatta has delayed the appointment of 41 Judicial Service Commission nominees, People Daily has learned.
And according to a source, who declined to be named because of the sensitivity of the matter that is further straining the fragile relations between the Executive and Judiciary, two of those with lingering integrity queries are among the 11 nominees to the Court of Appeal.
The source intimated that one nominee, a current judge in the High Court, is so serious that it could hit a dead end after being adversely mentioned in the Akasha brothers’ drugs case in the US.
Another nominee may have also run into trouble after the National Intelligence Service reportedly submitted to State House a report detailing numerous child upkeep cases against him in the Children’s Court and his philandering ways.
The other concerns are complex regional, ethnic and gender balance in the nominees list that are delaying the formal appointments made by the JSC almost three months ago.
The delay has also caused disquiet and widespread speculation within the corridors of justice.
Yesterday, Law Society of Kenya (LSK) president Allan Gichohi implored on Chief Justice David Maraga to immediately arrange for a meeting with Uhuru to end the impasse.
“The CJ should expeditiously meet with the President and have a conversation over this matter that is now becoming a major concern. I am not aware if this meeting has taken place and if not, why it hasn’t,” he told the People Daily from London where he is on an official trip.
Gichohi said the President lacks powers to veto the appointments made by JSC because his role is only to approve the appointments and subsequently witness the swearing-in.
But State House Spokesperson Kanze Dena downplayed the delay by the President to formalise the appointments saying there is nothing sinister, adding that the President is not time bound to gazette the appointments.
“There is nothing sinister at all as there is no time limit for the President to formalise the appointments. If there is any issue arising, the Judiciary and the public would be told,” she said.
But multiple sources within the Judiciary and Office of the President talked of a damning dossier on some of the nominees even as Uhuru scrutinises the list on the issues of tribal and gender balance.
The nominee linked to drugs case was reportedly among State officials named during court proceedings in the New York State court in the trial of former Mombasa-based drug lords Baktash and Ibrahim Akasha for aiding and abetting trafficking.
The Akasha brothers gave critical evidence incriminating the officials as accomplices in their drug trade as part of a plea bargain between them and the US justice system. Baktasha has already been sentenced to a 20-year jail term while his brother Ibrahim is set to be sentenced next month.
“As you can see the President is travelling through a difficult balancing act. He is not ready to see a member of the country’s second highest court being arrested if the Americans were to come calling over the Akasha case,” said a senior State officer privy to the matter.
The same nominees is also facing questions over his elevation to his current position as High Court with some observers saying it might have been politically influenced at the expense of lingering integrity questions.
Those against the judge’s upward mobility say his appoint to the High Court may have been influenced by a senior politician related to him by marriage.
The other nominee, got into trouble after several female staffers who have previously worked under him accused him of sexual harassment while some are said filed cases for child upkeep.
“The President is in possession of a dossier on the judge known for his readiness to zip and unzip at the slightest provocation. It is such an embarrassing case for a man garnering to be appointed as a Court of Appeal judge,” said the official.
JSC nominated 11 High Court judges—Francis Tuiyot, Hellen Omondi, Pauline Nyamweya, Weldon Korir, Msagha Mbogholi, Aggrey Muchelule, Jessie Wanjiku Lesiit, Mumbi Ngugi, George Odunga and Joel Ngugi — for appointment to the Court of Appeal on July 22 after interviews.
The only non-serving nominee to the Appellant court is renowned advocate and scholar Kibaya Laibuta.
On regional, tribal and gender balance, the President is also said to be grappling with the appointments of Justices Ngugi and Lesiit, who both hail from Kiambu.
Opinion is divided on whether Lesiit should be considered to hail from Kiambu, her ancestral home or Samburu, where she is married.
On the other hand, reports indicate that JSC settled on Lady Justice Omondi on grounds that the Labour Relations and Employment court has never been represented in the Appellate Court.
But her appointment is said to have given the President some arithmetic puzzle, since she hails from Nyanza region, like Justices Nyamweya and Odunga.
Some senior government personalities and lawyers are also said to be questioning why the JSC left out Justice Luka Kimaru, the president of the Civil Division, who is considered to be more senior and experienced.
And to the High Court, the commission picked 30 among them magistrates and lawyers. The appointment of the 11 was meant to raise the number of Court of Appeal judges from 19 to 30 but three of the sitting judges—Alnashir Visram, Philip Waki and Erastus Githinji—are set to retire this year.
Already, Nairobi lawyer Adrian Kamotho Njenga has petitioned the High Court to compel the President to approve the appointments. He has sued Attorney General Paul Kihara in his capacity as the chief government legal adviser, while the JSC and the Chief Justice are named as interested parties.