President Uhuru Kenyatta. The JSC has since 2011 held exclusive powers
of recommending to the President the individual to be appointed as the
head of the Judiciary. PHOTO | FILE
By SANDRA CHAO-BLASTO, schao@ke.nationmedia.com
In Summary
The High Court Thursday declared an amendment to the
Judicial Service Commission Act unconstitutional, stripping President
Uhuru Kenyatta of the powers to handpick the Chief Justice and his
deputy.
A five-judge Bench consisting of Justices Richard Mwongo,
Joseph Onguto, George Odunga, Weldon Korir and Mumbi Ngugi ruled that
the appointment of the top judge remains the sole mandate of the
Judicial Service Commission (JSC).
The judges argued that the amendment granting the
President powers to to select the head of the Judiciary would
effectively return the country to the dark past when patronage,
nepotism and corruption, determined appointment of senior public
officers and contrary to the Constitution’s demand for open and
accountable processes that promote good governance.
“Amendments compelling the JSC to submit three
names of each position to the President violated Article 166 (i) of the
Constitution.
Amendment of Statute Law to the Judicial Service
Act 2011 is unconstitutional and is hereby declared null and void,”
Justice Mwongo, who read the verdict, said.
Article 166 (i) of the Constitution grants the
President powers to appoint the Chief Justice and Deputy Chief Justice
in accordance with the recommendation of the JSC and subject to approval
of the National Assembly.
The judges argued that the President could not have
the opportunity to “have a second bite” as he was already represented
in the JSC through the Attorney- General and two members of the public
he appoints to sit on the commission.
“The selection needs to reflect all the diverse
representation of the commission. The selection process is an exclusive
mandate of the JSC that starts at advertising the positions to when the
names are submitted to the President,” the judges ruled.
The Statute Law (Miscellaneous Amendments Act
2015), altered Section 30 of the Judicial Service Act to require that
three names of each top judiciary position be forwarded by the JSC to
the President.
After selecting among the nominess for both the CJ
and Deputy CJ posts, the two names would then be forwarded to Parliament
for vetting.
Parliament passed the controversial legislation on
December 1 last year, just before the Christmas recess and Mr Kenyatta
immediately assented to it.
The JSC has since 2011 held exclusive powers of
recommending to the President the individual to be appointed as the head
of the Judiciary.
The Law Society of Kenya (LSK) in January took the
Attorney- General and the National Assembly to court over alleged
violations of the Constitution with the passing of the law.
The case was initially heard by Justice Isaac
Lenaola in January who temporarily stopped implementation of the new law
until the petition filed by the LSK was heard and determined.
A five judge Bench was then constituted to hear the weighty constitutional matters raised in the petition.
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