Lawyer files case to block CJ, deputy

May 16, 2011 12:00 am

, NAIROBI, Kenya, May 16 – Lawyer Harrison Kinyanjui has petitioned the High Court to quash the nominations of Dr Willy Mutunga and Nancy Baraza as the Chief Justice and Deputy Chief Justice respectively.

In the petition filed on Monday, Mr Kinyanjui said the action by the Judicial Service Commission (JSC) to nominate Dr Mutunga and Ms Baraza was contrary to his legitimate expectations and effectively tied the hands of the President, the Prime Minister and Parliament from consultations and debate on the nominees.

"By presenting only one name for the two respective positions, the JSC have effectively decided and concluded on the two being appointed as such," Mr Kinyanjui said in his petition.

"In this regard, the JSC has deprived both the President and Parliament of their constitutionally provided scope of making a choice through the process of approval."

Mr Kinyanjui faulted the nominating body saying no consultations can be made between the President and the Prime Minister as required under the National Accord and Reconciliation Act before appointing them.

He also questioned the criteria JSC has employed in adjudging the two nominees as the most suited for the positions.

"There has been no disclosure from JSC on the unanimity or even the difference of voting.  JSC has acted mischievously, unconstitutionally and in total disregard of the need to treat all the interested parties with dignity," the aggrieved lawyer said.

The lawyer wants the court to compel the JSC to provide him within 24 hours its concluded assessment and recommendations made in respect of all the applicants for the position.

In an affidavit in support of his petition, Mr Kinyanjui says that the two nominees have been openly supporting homosexuality.

"Dr Mutunga facilitated the incorporation of Kenya Gay and Lesbian Trust dated October 31, 2006, whose objective was to engage in activism for the abolition of legal and extra legal forms of discrimination by same gender loving people," he said in his affidavit.

Mr Kinyanjui questions whether JSC interviewed them over the same issue.

The case will be presented before the court on Tuesday.

Debate over the mode of nomination and the character of the selected candidates is picking up speed after the Church also voiced its concerns on Monday.

Eldoret North MP William Ruto has also voiced reservations.  Mr Ruto who spoke over the weekend wondered how a man who dons earrings or studs could lead the Judiciary and said Kenya needs prayers.

Some section of the Church has also questioned the morality of the two nominees over their alleged association with same sex groups.

The JSC last week picked Dr Mutunga and Ms Baraza as CJ and Deputy CJ respectively after interviewing candidates who applied for the posts.

Dr Mutunga, who holds a PhD in law, is a former chairman of the Law Society, the Kenya Human Rights Commission and once taught at the Kenya Law School. He is well known as a vocal champion for reforms in the country and was a leading light in the clamour for constitutional reforms.

Ms Baraza who has practiced law for over 30 years is presently pursuing a PhD.

The two names will be handed over to President Mwai Kibaki, who in consultation with Prime Minister Raila Odinga will then forward them to Parliament for approval. 

If cleared, the names will be taken back to the Head of State who will then announce the next Chief Justice and the deputy.

According to Section 166 (1) of the Constitution, "The President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly."

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