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Court okays JSC role in selecting Chief Justice

NAIROBI, Kenya, Mar 4 – The High Court has declined to issue temporary orders halting the operations of the Judicial Service Commission (JSC) in a case filed by Juja MP William Kabogo.

Mr Kabogo wanted the work of the JSC stopped pending the hearing and determination of his case in which he argues that there were fatal errors in the establishment of the commission.

He argued that the gazette notice appointing two of the members did not give the tenure of their appointments as required in law.  There is also reference to a non-existent provision on the Constitution in setting up the JSC.

High Court judge Daniel Musinga however said errors in the Constitution cannot be used as a basis of invalidating key appointments. His ruling now paves way for recruitment of the Chief Justice and the Deputy Chief Justice.

Justice David Musinga said a typographical error in Section 20(3) that refers to Article 171 (4) (c) (d) (f) & (h) which are non-existent, should not hold back the process of employing the head of the judicial arm of the government.

"Since Article 171 is supposed to be read together with Section 20(3) I do not think that the aforesaid error can occasion any serious legal dispute. It is my considered view that the error cannot invalidate otherwise lawful appointments,"

He declined to grant interim orders halting the JSC\’s work and ordered that the MP\’s case goes to full hearing.

"I decline to grant conservatory orders as sought but direct that this application and the petition be heard and determined on priority basis," Justice Musinga said.

He said it was unfortunate that the errors were not realised by Parliament and the Attorney General before the Constitution was promulgated.

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"I hope the Attorney General will give appropriate advice as to how these constitutional errors can be corrected," Justice Musinga said.
Mr Kabogo argued that the Judicial Service Commission was 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 advertised 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 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 by Prime Minister Raila Odinga and the civil society.

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.   William Kirwa had been nominated to take up the office of the Controller of Budget.

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