, NAIROBI, Kenya, May 26 – An amendment to the Judicial Service Commission (JSC) Act which gives the President leeway in the appointment of the Chief Justice and Deputy CJ has been declared unconstitutional.
A five-judge bench comprising justices Richard Mwongo, Mumbi Ngugi, Weldon Korir, Joseph Onguto and George Odunga declared section 30 (3) of the JSC Act null and void as it interferes with the doctrine of separation of powers.
According to the judges, it was improper for the amendment to be effected in the appointment of the Chief Justice and the Deputy Chief justice as the President’s discretion is limited.
“Opening a window for the President to decide whose name should be forwarded to the National Assembly would mean that the solution lies somewhere else,” they held.
They further faulted the amendment, saying it was never subjected to public participation as required under the Constitution.
The court held that in doing so, the JSC would no longer have the discretion in the appointment of the two senior officials of the third Arm of Government.
“This would alter the spirit and letter of the Constitution by telling the JSC how to do its work,” they declared.
According to the amended Act, the JSC is required to forward three names to the President to appoint a suitable name.
This, according to the judges would allow the Head of State to conduct a sub-nomination and open an avenue for manipulation, tribalism, patronage and favouritism.
“Forwarding of three names to the President for appointment violates Article 161 of the Constitution as it would take away discretion of the JSC,” the bench declared.
The judges concurred with the LSK, JSC, and Centre for Enhancing Democracy & Good Governance (CEDGG), Constitution and Reform Education Consortium (CRECO), Katiba Institute, and Kenya Human Rights Commission and National Civil Society Congress that only one name should be forwarded to the President for appointment.
LSK had argued that the amended Act is unconstitutional as it purports to give the President powers that he does not have under the Constitution.
The lawyers’ umbrella body and JSC submitted that it is intrusive for the President to assume the role of vetting.
The bench was told the President shall appoint a name forwarded by the JSC and cannot purport to recruit anybody.
“The role of President is only to formalize appointment of judges. The advice of the commission is binding to him and cannot run away from it,” Senior Counsel Paul Muite had argued.