NAIROBI, Kenya, Oct 28 – A lobby group led by former Chief Justice Willy Mutunga is set to launch a petition calling on Court of Appeal judges to down their tools over unsettled judicial appointments.
Mutunga said the movement will petition Court of Appeal judges to down their tools in solidarity with Justices Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi who were omitted from judicial appointments by President Uhuru Kenya despite having been cleared by the Judicial Service Commission (JSC) for appointment as superior court judges.
The former CJ termed the move by President Kenyatta as political and unjust since the JSC has the final verdict on the matter.
“To think that two years he hasn’t come up with the intelligence on the suitability of these judges and because of the President action the issue has been ethnicized. Any Kenyan should not that one the issue ethinicized then it is not right. You can’t say a judge is unsuitable and not give reason, it should be given to JSC,” he said.
“Whether he got the intelligence from the Interpol, F.B.I or Mossad it should have gone to the JSC. You cant say a judge is unsuitable and not give the evidence. The candidate has to be given an opportunity to answer those charges. Having worked at the Judiciary it pains me to see some of the incorruptible judges being denied an promotion. Its a personal thing for me,” he added.
Mutunga revealed that in 2015 the JSC advised President Kenyatta to raise issues with the commission where he has valid concerns on suitability of judges.
The retired CJ who was named the convener of the United Political Front (UPF) comprising of United Green Movement (UGM), the Communist Party of Kenya (CPK) and Ukweli Party (UP) said there is no provision in the law that dictates that the Head of State must swear promoted judges fro them to take up their new roles.
“If you look at the constitution there is no provision that says the President must swear in the judges. This are conventions that exist from the old constitution in terms of relationship between the three arms of government. The Constitution is only clear that the Chief Justice should swear an incoming President,” he added.
The judicial activist said Chief Justice Martha Koome should swear in six judges omitted from appointment despite having been listed among a list of 41 candidates recommended JSC.
“Am sure they will be cases clarifying this issue of swearing in of the Judges. The President can’t refuse to appoint judges because the JSC has the final verdict on the matter. If he (Uhuru) wants to derail this process is when Chief Justice and Deputy Chief Justice are nominated and they go to Parliament awaiting approval,” the former CJ stated.
On October 21, High Court justices William Musyoka, James Wakiaga and George Dulu said Chief Justice Martha Koome in conjunction with the Judicial Service Commission shall be at liberty to take all necessary steps to swear in the six judges if President Kenyatta fails to play his part.
Attorney General Kihara Kariuki however filed an appeal on October 27 challenging the order.
He said orders issued by the three-judge bench were based on foreign precedents as they are not backed by law.
Kariuki said the judgment has the potential effect of creating a conflict between the office of the Chief Justice and the Office of the President.
