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Nzamba Kitonga was the chair of the Committee of Experts on constitutional review. /CFM-FILE.

Kenya

Nzamba Kitonga now wants AG out of JSC

NAIROBI, Kenya, Jun 16- Constitutional expert Nzamba Kitonga has called for the restructuring of the Judicial Service Commission (JSC).

Kitonga, who chaired the Committee of Experts (CoE) on Constitutional review is proposing JSC to have only one judge and does not want the Attorney General on it, in what he says will help enhance transparency.

“The JSC has not been transparent in its work,” he said during a Webinar hosted by the Kenyan Section of the International Commission of Jurists attended by several legal scholars.

The radical proposal comes at a time JSC is locked in a vicious tussle with the Executive, after President Uhuru Kenyatta declined to appoint 41 new judges proposed by the commission.

On advise of the National Intelligence Service, President Kenyatta says some of the judges are tainted but Chief Justice David Maraga holds that he has no choice, in law, but to make the appointments.

Maraga called a rare press conference last week, flanked by no other official from the Judiciary or the commission, to blast the Executive, and lamented that he was frustrated after failing to secure an appointment with the President to resolve the matter.

The CJ’s remarks at the press conference have been a subject of divided opinion among legal scholars and politicians, with Narc Kenya leader Martha Karua weighing on Tuesday, that Kenyatta and Maraga must sit down to talk.

The Law Society of Kenya, LSK, has made its position clear, that Maraga is right in protesting the delayed appointment of the new judges.

And on Tuesday, Kitonga, who played a key role in writting the current constitution, under which JSC was established, said the new face of the commission should the Treasury Cabinet Secretary in place of the AG “because as part of government, he (Treasury CS) is able to advise the JSC on the budget available for recruitment of judges.”

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“The AG seats on the JSC and is part of the decision-making process, but after making those decisions, he goes and misadvises the President,” Kitonga said.

He cited an incident where former AG Prof Githu Muigai advised against appointment of some judges during his tenure, resulting to a crisis- similar to the current one.

The judges, he said, were only sworn in after a court order was obtained against the President.

Kitonga said the opaque nature in which the JSC operates has led to lack of confidence among Kenyans, citing lack of openness in the recruitment and disciplinary processes.

To enhance transparency within the powerful commission, he said, the chairperson should either be a retired judge, a senior advocate or any other member of the public.

Chief Justice David Maraga is the current chairperson of JSC with membership drawn from the High Court, Court of Appeal and the Supreme court- with each contributing a member, the AG, 2 advocates, a presentative of the Public Service Commission and 2 appointees of the President.

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