On 3rd June 2021 the President appointed 34 out of 41 Judicial Nominees presented to him by the Judicial Services Commission, leaving out 6 nominees 1 having since passed on. This was after a 2 year stalemate whereby the President refused to appoint the Judges citing integrity issues.
This appointment comes days after a 5 Judge bench declared the BBI process unconstitutional and a nullity {https://www.bbc.com/news/world-africa-57094387} since it was not initiated by a popular initiative but by the president. Among those left out are 2 Judges that sat on the 5 Judge bench {https://www.standardmedia.co.ke/national/article/2001414723/justices-ngugi-odunga-left-out-in-presidents-appointments} that impugned the BBI Bill {http://kenyalaw.org/caselaw/cases/view/207503/}. Two days before the appointment during a National Holiday Celebration the President openly criticized the Judiciary for what he termed as usurping the people’s power {https://www.capitalfm.co.ke/news/2021/06/icj-kenya-linda-katiba-condemn-uhurus-remarks-on-judges/}.
The foregoing instances bring out the key constitutional question ; Is the President akin to interfere with the Independence of the Judiciary ? This question is informed by actions of the head of state that can directly be interpreted by the common man of having the intention to arm twist, intimidate, threaten and diminish the stature and Independence of the Judiciary. The Independence of the Judiciary is a well established constitutional Principle, so is the checks and balances of the three arms of government.
The President finally appointing Judicial Nominees after years of being soothed to do so should not be seen as any step forward. This will be by large reducing a constitutional mandate to a favor. Many are likely to wrongly think that by not appointing all the Judicial Nominees and at least appointing 34 of them it’s in the public interest. Well it’s not and nothing could be further from the reality. The backlog of cases and understaffing of Judges in the Judiciary is a direct creation of the head of state, only to come later and pretend to solve it. The President had 2 years to appoint the 34 Judges and leave out the ones he considered to have integrity issues, if so was the case.
The issue of integrity of some of the Judges has clear laid out mechanisms on how to deal with such errant Judicial Officers. The Law lays out a clear procedure as to the removal of a Judge from office. Why didn’t the president follow the Law if he had sufficient grounds as to the unsuitability of any of the Judges. Why do Judicial Officers have to be subjected to an opaque integrity inquiry. It’s actually in the public interest that they are removed from office if found culpable. Refusal to appoint the 6 Judges is a clear example of political anarchy.
The Law is clear on who is to vet, hire and nominate Judges, the Judicial Service Commission. The President’s role is ceremonial as has been decided by The High Court of Kenya. If the President has an issue with a court ruling or judgment he should follow the due process and appeal like the rest of ‘Wanjiku’. What could be the scenario if each Kenyan acts in the same way when not impressed by a court ruling or judgment ? The President should abide by the rule of Law because it’s this very Law that confers upon him the Presidential Position through our vote.
The timing and manner of this appointments is therefore suspect and a red flag towards the independence of the Judiciary.
Kenphilip Oriku Blog 