Statement against the appointment of the JSC Tribunal


What began as a disciplinary hearing against an employee of the Judiciary has now matured into a major inter-branch conflict within the government, engulfing the Judiciary, the presidency and the legislature, and culminating in the appointment yesterday of a tribunal to look into the suitability of six members of the Judicial Service Commission to continue in office.

The situation has reached here because of a failure of leadership at every point. There was a failure of leadership when the Speaker of the National Assembly allowed the Justice and Legal Affairs Committee to assume jurisdiction over the dispute between the Judicial Service Commission and the former Chief Registrar of the Judiciary despite the fact that this was an internal issue of the Judiciary and secondly, notwithstanding the fact that the matter was still under deliberation within the JSC.

There was also a failure of leadership when the National Assembly adopted the report of the Legal Affairs Committee calling for a tribunal for the removal of the six members. Better counsel would have led to the search for a more amicable way of dealing with this matter at that point.

The President had a choice to accept the recommendation of the National Assembly for the appointment of a tribunal or to reject the recommendation. He could have used the opportunity presented to him to bring about dialogue among the concerned branches with a view to averting the crisis that we are now experiencing.

However, he has failed to do so and has chosen to appoint a tribunal whose effect would be to dismember the Judiciary and to leave it as an appendage of the presidency and the Legislature. Again, the failures by the president have been failures in judgment, and in leadership. It is now clear that the president is a willing participant in the scheme to destroy the Judiciary.

The appointment of the tribunal must be viewed in the wider scheme of what is going on in the country at the moment. The National Assembly has already enacted the Kenya Information and Communication Bill, which contains severe limitations on the freedom of the media in Kenya.

Currently, the National Assembly is debating amendments to the Public Benefits Organizations Bill, the passage of which will severely limit funding for civil society organizations in the country, and bring an end to the culture of civic vigilance which is an important source of the freedoms that we enjoy in this country.

Insecurity reigns in the country with the bandits holding free reign in northern Kenya while the promise to institute inquiry into Westgate attack remains just that; a promise.

Viewed together, these three developments lead to the conclusion that the Jubilee government is determined to bring an end to all autonomous institutions in the country. A pattern of a return to repression is taking shape. What is being attempted currently is to establish a country of presidential and legislative tyranny, and where no other institution in and out of the government will be allowed a voice. The people of Kenya must wake up to the fact that the new Constitution which they enacted and which they cherish, is now under threat because of the actions of this government.

The choice of members of the tribunal to look into the suitability of the six members of the JSC merits comment. All four have close ties with the ruling party. The inescapable conclusion is that their selection is motivated by a desire to reach a pre-determined outcome. The proposed tribunal is, therefore, an act of deception, clothed in the formalities of a constitutional process. CORD rejects both the individuals selected and the idea of the Tribunal, and calls upon the president to revoke the appointment.

As the country knows, CORD has taken blows in the hands of the Judiciary, whose decision in the presidential election petition we did not agree with but which we still accepted. We did so because we believe in the rule of law, which is now under attack through the actions of the President and the National Assembly.

Our belief in the rule of law brings us to the defence of the Judiciary, even though we do not admire its record. We call upon the Judiciary to remain steadfast in the face of this blatant bullying by the presidency and the legislature.

It is not too late to find an amicable resolution of this mater. CORD also calls upon the President to lead in the search for such a resolution of the crisis that he and the National Assembly have created.

2 Replies to “Statement against the appointment of the JSC Tribunal”

  1. Oh, now you believe in the rule of law? Please spare us the rubbish.
    The President could NOT reject the recommendation of the national assembly permanently. They would simply have sent back the recommendation to him and he would still have had to do as parliament wanted. Parliament is paramount.
    But of course you would not know this since you are a regular mwananchi…. just like me; albeit just a tad more clueless than those of us that have read the constitution fully.

  2. The tribunal is valid Mr. Prime Minister (as you want to be called). It was Marende who set precedent in defending you in Parliament when he restated that the president could not appoint without consultation … he spoke against the Judiciary which had ruled otherwise then. Basically, the National Assembly was within its right to pass the names to the president and the president was within his rights to act. You and your opposition party need to think a bit harder after the mess you caused over the last 10 or so years in regard to setting precedent on many other things.

    My problem with this tribunal is the composition – and I think you should be fighting that.

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