Uhuru loses powers over appointment of top judge

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 has ruled that the appointment of the top judge remains the sole mandate of the Judicial Service Commission (JSC).

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.