The Kenya Magistrates and Judges Association (KMJA) has criticized President Uhuru Kenyatta for omitting the names of six judges in his recent appointments.
The Head of State yesterday appointed 34 judges from a list of 41 recommended by the Judicial Service Commission (JSC) nearly two years ago, rejecting the names of the six among them justices Joel Ngugi and George Odunga who were among a five-judge bench of the High Court that recently declared President Kenyatta’s pet project, the Building Bridges Initiative (BBI) process, unconstitutional.
The President also declined to appoint Justices Weldon Korir and Aggrey Muchelule to the Court of Appeal.
Others rejected are Makori Evans Kiago and Judith Omange Cheruiyot.
Reacting to the recent appointments, KMJA Secretary-General Derrick Kuto termed the President’s move as 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,” said Kuto.
“The decision by the President to leave out the six is therefore baffling, unfounded and patently unconstitutional.”
He said that President Kenyatta is setting a very bad precedent for “this country, one of not following the rule of law and disobedience of court orders.”
The SG demanded that the President should correct the illegality by appointing the six judges as recommended by JSC immediately.
“…KMJA calls upon the President to immediately gazette the six that were left out,” Kuto added.
The President has been under fire from a section of Kenyans online for rejecting the names of the six nominees.
Earlier, Katiba Institution filed a petition in the High Court to contest ‘cherry-picking’ of the 34 judges and the ommission of the six nominees.
In the application filed through lawyer Dudley Ochiel, the institution argues that Article 166( 1) commands the President to appoint judges of superior courts in accordance with the recommendation of JSC.
“Cherry-picking also illegally serves as a constructive removal of the nominees already as sitting judges. A fact which is both unconstitutional and highly stigmatizing,” read the application.
“The cherry-picking and selective appointment or swearing in of judges undermines the functions and powers of the Judicial Service Commission and the functioning of the Judiciary. It also is an improper extension of the role of the Executive and has created a constitutional crisis.”
The institution wants the court to issue an order stopping Chief Justice Martha Koome and the President from swearing in the 34 judges without the other six contrary to the recommendation of the JSC in 2019 pending hearing of the application.
Also sought are orders barring the Chief Justice and the JSC from assigning duties to the 34 appointed judges.