Chief Justice Martha Koome on Friday evening distanced herself from the just-concluded swearing-in of 34 judges by President Uhuru Kenyatta.
While asking the President to appoint the remaining six judges, the CJ stated that she had no part to play in the constitutional process, which was undertaken two years ago, adding that she assumed office two weeks ago.
She explained that upon forwarding the 41 names to the President, the Chief Justice and the Judicial Service Commission (JSC) ceased to have any role in the process.
“The mandate of the JSC is spelt out under Article 172 of the Constitution. In relation to judges, the JSC’s role is to undertake recruitment through a competitive and transparent process and recommend to the President suitable persons for appointment as judges,” she explained.
Justice Koome also noted that it is the second time President Kenyatta is delaying appointment of judges, as she recalled that the same happened in 2014 when the JSC recommended the appointment of 25 nominees as judges.
At the time, President Kenyatta initially appointed 11 of them and subsequently appointed the remaining 14.
“We call upon the President to similarly appoint the remaining six judges because the Judiciary is still in dire need as the backlog of cases is increasing. We should find a lasting solution so that moving forward, this kind of delay and misunderstanding will be a thing of the past,” said the CJ.
She observed that the respect for the rule of law and the independence of the Judiciary is guaranteed under the Constitution and that no person or authority is allowed to direct the JSC or the Judiciary in the execution of their mandate.
The CJ, who had earlier in the day attended the swearing-in ceremony of the 34 judges presided over by the President at State House, spoke on the issue after facing criticism over her role in resolving the sage.
34 judges take oath of office
During the ceremony, President Kenyatta defended his decision to partially appoint judges from a list of 40 that had been recommended by the JSC, as attention turned to the Chief Justice over how she will deal with the omission of six nominees.
While the President completed his ceremonial duty with the swearing-in of the judges, Mrs Koome faced one of the biggest tests in her two-week-old tenure as the head of the Judiciary.
“Just like you today, I too took an oath to both the letter and the spirit of the law and it is not open to me to turn a blind eye to reports of our stakeholders. As long as I serve as President, I will choose the right over the convenient; I will choose the hard over the easy, and I am not doing this for myself, but for the people of Kenya and for posterity,” the President said.
Lawyers, political leaders and the civil society on Friday criticised the decision to leave out six of the nominees. Katiba Institute had moved to court to stop the swearing-in of the new 34 judges but had not obtained any orders as the President presided over the ceremony at State House, Nairobi.
For Chief Justice Koome, who in her maiden speech promised to protect and defend the independence of the Judiciary, she finds herself in a situation where she has to mend the frayed fences with the Executive while also having to explain the omission of the six, who include serving judges.
According to lawyer Charles Kanjama, the CJ is also facing a challenge because there is a perception that she was involved in a deal with the President to have him cherry-pick the judges.
"There is a perception among lawyers that she is compromising part of the independence of the Judiciary. This is a difficult matter that she needs to make a choice on. On one side is interest on administration of justice and on the other side is a President who is stubbornly insisting on not fully complying with appointing all the nominees entirely. What do you do? “ he posed.
Mr Kanjama added that more judges and magistrates are needed because the case congestion has worsened in the last two years. For instance, at the Employment and Labour Relations Court, the judges are yet to handle the cases that were filed from 2017.
"Cases filed from 2017 are yet to be allocated dates meaning they will start to be heard after four or five years. Imagine the workers fired in 2017 and challenging their dismissal will be waiting until 2023. The employment court is in bad shape," said the lawyer.
The question on the lips of many lawyers on Monday was whether Mrs Koome would come out to address the appointments and omissions and how State House would interpret such a speech.
For veteran lawyer John Khaminwa, the President has created an impression that he rejected elevation of Justices Joel Ngugi and George Odunga for thwarting his intention to amend the Constitution through the Building Bridges Initiative (BBI).
"It is unfortunate that Justices Ngugi and Odunga could have been left out due to the BBI judgment. The President's decision raises questions about the independence of a judge; that a judge can sit in a case and miss promotion because he did not excite certain quarters," said Mr Khaminwa.
He added: "If through his own record President Kenyatta came across adverse reports against some of the nominees, he should have them appointed and hand over the information to the relevant agencies so that appropriate proceedings can be commenced against them".
In his brief speech, President Kenyatta asked the newly sworn-in judges to serve the people of Kenya with actions and decisions.
“Be guided slowly on unbiased and faithful application of the Constitution and our written laws, principles and values and the overriding interest of justice,” Mr Kenyatta said.
The President described the judges as the bastions of justice, defenders of liberty, instruments of law and order, guardians of the rule of law and the embodiment of the hopes and dreams of our people. He further reminded them of the “deeply demanding” nature of a state office saying: “Many new burdens will be placed on your shoulders, the public expectations on you will be very high and obstacles will be thrown along your path.”
The country’s first in command called on the three arms of the government to work for the country’s common good.
“I remind all honoured with the service for our nation in the Judiciary, executive or the legislature that we have a collective duty to serve the people of Kenya. We’re one government bound together by our common duty to deliver the hopes and dreams of Kenya,” said the President.
When being interviewed to become the Chief Justice, Justice Koome said she would pick her phone and call the President in a bid to end the impasse, which has persisted for close to two years
Lawyer Adrian Kamotho said it will be unfortunate if Chief Justice Koome is persuaded to accept a partial list.
“It will be a betrayal of the judges rejected by the President if the Chief Justice accepts the partial list. It is clear that the President cannot modify the list as his role is clearly demarcated,” he said.
Elgeyo Marakwet Senator Kipchumba Murkomen said the eyes of Kenyans are fixed on Justice Koome, who he termed as a liberation and prayer warrior. “This is a watershed moment in the history of our Judiciary and will define the legacy of CJ Koome. Over to you madam CJ!” Mr Murkomen said.
Uhuru's address during swearing-in of judges
Mombasa LSK branch, through its chairman Mathew Nyabena, said President Kenyatta ought to initiate the process of removal of the said judges as provided for in the Constitution.
“It will be sad and unfortunate if the President does not share the full particulars of impropriety and invoke steps to have them removed. In the absence of such material evidence and in line with the various decisions by the constitutional court, the President has no option than to appoint the six as judges in the various courts,” he said.
Mr Nyabena added that eyes are now fixed on the JSC, chaired by Mrs Koome, on how it will handle the names referred back to them.
By Joseph Wangui, Sam Kiplagat, Anita Chepkoech and Walter Menya
