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June 1, 2021 | President Uhuru Kenyatta speaks during Madaraka Day celebrations in Kisumu/PSCU

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No! Mr President, you can’t cherry-pick judges

NAIROBI, Kenya, Jun 4- The decision by President Uhuru Kenyatta to reject 6 Judges nominated by the Judicial Service Commission (JSC) for appointment to superior courts has caused uproar, with legal minds terming it unconstitutional.

Former Justice Minister and NARC Kenya party leader Martha Karua described the President’s move as ‘cherry-picking and a deliberate intimidation of the Judiciary.’

A similar view is held by Law Society of Kenya (LSK) President Nelson Havi and Rarieda legislator Otiende Amollo, who says the President has no power to decide which Judge to gazette or not after recommendation by JSC.

“On this, we must be plain, the president cannot select which judges to gazette after JSC recommendation,” the Rarieda Member of Parliament said.

Kenyan-American professor at the SUNY Buffalo School of Law Prof Makau Mutua has called on Chief Justice Martha Koome to speak out against the move.

He further says the 34 Gazetted judges should decline their appointment until their colleagues are included in the list.

Among those who were left out include Justices George Odunga and Prof Joel Ngugi, who were part of the 5 Judge-bench that declared the Building Bridges Initiative (BBI) null and void, in a historic ruling that has drawn appeals including from the president himself who accused the judges of robbing Kenyans their will.

“BBI judges Joel Ngugi and George Odunga have been denied elevation to the Court of Appeal. Mr. Kenyatta can’t choose which provisions of the constitution to obey, or disregard,” Professor Mutua said Friday.

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Lawyer, Demas Kiprono, who works for the Amnesty International-Kenya said the president must follow the constitution.

“Respect for “rule of law” is the conviction to accept unfavourable outcomes as long as legal processes were followed. Disrespect is when you believe you are above all of it. you operate under a different set of rules and norms. History can be very cruel to such fantasies,” he cautioned.

Elgeyo Marakwet Senator Kipchumba Murkomen called on the Chief Justice to protect the independence of the Judiciary.

“Our eyes are fixed on the liberation warrior, the Prayer warrior, the Chief Justice, and the President of the Supreme Court Justice Martha Koome. This a watershed moment in the history of our Judiciary and will define the legacy of CJ Koome. Over to you Madam CJ,” Murkomen said.

The President offered no explanation for his move, which comes 2 years after failing to appoint the entire list by JSC.

Justices Msagha Mbogholi, Omondi Hellen Amollo, Mumbi Ngugi, Francis Tuiyott, Nyamweya Pauline Nyaboke, Jessie Lesiit, and Laibuta Imaana are among the seven who were appointed to the Appeals Court in a gazette notice dated June 3.

The delay in the appointment of the Judges had caused frosty relations between the Executive and the Judiciary after former Chief Justice David Maraga decried the crisis caused by the inadequate judges in superior courts even as Attorney General Kihara Kariuki insisted the President will not appoint judges with questionable character adding that the refusal to appoint the JSC nominees was within the law.

The Judges who were recommended by JSC in July 2019 for appointment to the Court of Appeal, the Environment and Land Court, and the Employment and Labor Relations Court formed the basis of Maraga’s frustrations.

In a Gazette Notice issued on Thursday, President Kenyatta appointed 18 judges to the Environment and Land Court and nine Employment and Labour Land Court.

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Justices Baari Christine Noontatua, Gakeri Jacob Kariuki, Keli Jemima Wanza, Mwaure Ann Ngibuini, Matanga Bernard Odongo Manani, Rutto Stella Chemtai, Kebira Ocharo, Kitiku Agnes Mueni-Nzei, Nderitu David Njagi, have been appointed to be Judges of the Employment and Labour Relations Court

Meanwhile, Justices Mboya Oguttu Joseph, Naikuni Lucas Leperes, Mwanyale Michael Ngolo, Addraya Edda Dena, Kimani Lilian Gathoni, Kamau Joseph Mugo, Wabwoto Karoph Edward, Koross Anne Yatich Kipingor, Gicheru Maxwell Nduiga, Mogeni Ann Jacqueline Akhalemesi, Ongarora Fred Nyagaka, Christopher Kyania Nzili, Mugo David Mwangi, Omollo Lynette Achieng’, Washe Emmanuel Mutwana, Nyukuri Annet, Murigi Theresa Wairimu, Asati Esther, to be Judges of the Environment and Land Court.

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