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April 16, 2021 | Philip Murgor, S.C. appearing before the JSC for his interview for the position of Chief Justice/Judiciary Media Service

Kenya

Murgor says Constitution short of naming CJ third in succession

Murgor, while responding to Justice Mohammed Warsame, a Judicial Service Commission panelist, said the omission of the Chief Justice as the third in line was so significant to be amended through a declaration by a court of law.

NAIROBI, Kenya, April 16 – Senior Counsel Philip Murgor on Friday said there was a gap in the law on who would assume the presidency, in the absence of the President, in the event the Deputy President and National Assembly Speaker are unable to do so in line with provisions of Article 146 (2) of the Constitution.

Murgor, while responding to Justice Mohammed Warsame, a Judicial Service Commission panelist, said the omission of the Chief Justice as the third in line was so significant to be amended through a declaration by a court of law.

“The Constitution is silent in the event the speaker of National Assembly is unavailable, who will be our president?” Warsame posed.

“I have read the constitution and I saw the gap and said to myself it might be the CJ but I cannot speculate. The Chief Justice and other judges of the supreme court cannot go into the arena where they are filling in gaps in such a substantive manner,” Murgor responded.

Murgor also declined to express his view on a civil and criminal prosecution of a sitting President under his tenure saying it would amount to passing a judgment on a matter that would be presented to him for adjudication should he become the next Chief Justice.

“When you put forward a hypothetical question like that, its unfair for a person who may end up in the supreme court because should he be faced with such a situation, he would have already expressed his view and it would the first order of business to express that judge,” the lawyer responded

The 60-year-old lawyer further refuted Warsame’s view that the president exercises judicial function under Article 133 of the Constitution.

“He doesn’t exercise judicial function, he just exercises his presidential powers. At no point under article 133 (1) is the president said to be exercising a judicial function, it is not worded under the relevant article,” he said.

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Article 133(1) which generally highlights the President’s Power of Mercy states: “On the petition of any person, the president may exercise a power of mercy  in accordance with the advice of the Advisory Committee.”

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