, NAIROBI, Kenya, Mar 3 – Juja Member of Parliament William Kabogo has now moved to the High Court to stop the Judicial Service Commission from carrying out its mandate.
Mr Kabogo says the Commission was constituted illegally and in disregard of the provisions of the Constitution.
Mr Kabogo\’s application essentially targets the Commission\’s role to recruit the next Chief Justice and the Deputy Chief Justice which he says if allowed to proceed, would amount to extending an illegality.
He argues that the Judicial Service Commission is in office illegally, because the Gazette notice that formalised the appointment of members gave them five years in office, while the Constitution only grants a three-year term.
The case was filed barely a day before the Commission was due to advertise the vacant position of the Chief Justice and Deputy CJ.
According to suit papers filed by the MP, the appointment of members to the commission violated the provisions of the Constitution and set a dangerous precedent which affects the very root of constitutionalism and the rule of law which ought to be safeguarded.
The appointments were gazetted on October 26, 2010. However the appointments were not backed by any constitutional validity, the lawmaker contends.
The office of the President, the MP says, misdirected itself while exercising its powers conferred by constitution by failing to appreciate the conflict under article 171 read with section 20(3) and sixth schedule which deals with establishment of JSC.
"The process of nomination of the Chief Justice has generated heat, controversy in a manner that threatens national unity and as a result it is necessary that the JSC which is mandated to vet such person be sanctioned by law," Mr Kabogo\’s lawyer Nick Ndichu told the court.
The decision to advertise the jobs of CJ and those of Attorney General, DPP and Controller of Budget came after President Kibaki withdrew the names of his nominees to the offices following opposition from different quarters. The High Court and the Speaker of the National Assembly Kenneth Marende have separately ruled that the President acted unconstitutionally in making those nominations.
The President had nominated Court of Appeal judge Alnashir Visram as Chief Justice, and Lawyers Prof Githu Muigai and Kioko Kilukumi as the Attorney-General and the Director of Public Prosecutions respectively.
Prime Minister Raila Odinga is the one who threw the spanner in the works when he publicly denounced the appointments claiming he was not consulted.
A ruling in Mr Kabogo\’s case is now due be issued on Friday afternoon by Justice Daniel Musinga, who said he needed time to make his consideration since the matters raised were of high public interest.
"This matter raises weighty issues which need to be given proper consideration and as a result I will not give a ruling immediately. I direct that you come for the ruling tomorrow at 2.30pm," Justice Musinga ruled.
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