Court bars JSC from revealing why Uhuru rejected six judges
From left: Justices George Odunga, Joel Ngugi, Weldon Korir and Aggrey Muchelule.
The High Court has stopped the Judicial Service Commission (JSC) from making public an alleged report by President Uhuru Kenyatta on the rejection of six judges who had been recommended for appointment.
In the orders issued by Justice James Makau, the JSC has also been stopped considering any petition for removal of the six judges from office.
The Commission will also not publicise any report connected to the nominees that is injurious to their integrity.
Further, the Commission, which is chaired by Chief Justice Martha Koome, will not on its own motion initiate or interfere with the functions of the six judicial officers based on the alleged President's report.
The JSC has also been barred from convening a meeting to discuss the six justices or recommend a meeting on action against them following alleged adverse mention in the report.
Justice Makau's orders will remain in force until determination of a case filed by lawyer Bernard Odero Okello challenging the President's decision to snub Justices George Odunga, Aggrey Muchelule, Joel Ngugi and Weldon Korir together with Mombasa chief magistrate Evans Makori and High Court deputy registrar Judith Omange.
Independence of JSC
In his court papers, Mr Okello argues that by declining to appoint the six judges, the President has interfered with the independence of the JSC.
He also argues that it is a violation of the Constitution for the Executive to vet and investigate the six judicial officers and make a recommendation to the JSC on their integrity. In his view, the authority to vet and investigate judges is reserved for the JSC.
"The President has discriminated against the six judges. Article 27(3) of the Constitution decrees that all citizens have the right to equal treatment including the right to equal opportunities," says Mr Okello.
He also argues that the Mr Kenyatta violated the Constitution by selecting 34 names from the list of 41 nominees that was forwarded to him by the JSC two years ago.
'Psychological torture'
Meanwhile, another petition filed by a Nakuru-based doctor seeking compensation of the six judges for psychological torture as a result of the President Kenyatta's decision to snub them will be determined by a three-judge bench.
Justice Makau referred the case file to the Chief Justice for empanelment of the bench following a finding that the case raises substantial legal issues.
The petitioner, Dr Magare Gikenyi Benjamin, wants the six judges to be elevated to their respective job status (four to Court of Appeal and two to High Court) as recommended by the JSC in July 2019.
He argues that since the Constitution does not envisage a situation where the President would decline to appoint judges as recommended by the JSC and has no powers to reject any appointees, the six judges should be deemed as fully appointed, gazetted and be sworn in.
Dr Magare wants court declare that the President has failed Chapter 6 of the Constitution, on leadership and integrity, through the disputed decisions of his omissions and commissions.
The 31-page petition, premised on 126 grounds, is the fourth case to be filed against President Kenyatta's decision to cherry-pick judges for appointment after lawyers Kamotho Njenga, Bernard Okello and lobby group Katiba Institute filed separate cases on the same.
Dr Magare is also pursuing damages of an unspecified amount for the six judges on grounds that they ought to be compensated for psychological and other forms of suffering as a result of the President’s decision to reject them.
The petitioner, a Consultant Trauma and General Surgeon, says the selective appointment and swearing in of the 34 judges was contrary to a finding of the court and the Constitution which envisages appointment of all judges as presented by the JSC.
"It’s not by chance, nor is it just a mere coincidence that the same has happened immediately after swearing in of the 3rd respondent, ruling of the BBI court case and bashing of the Judiciary during Madaraka day cerebrations in Kisumu by the President," says Dr Magare in the petition.
He observes that should anybody, including the Head of State, have anything against a judge or magistrate, he or she should raise the issue with the JSC.
"It's illegal to condemn a judge unheard. The President and the respondents have already presented themselves as an accuser, prosecutor and jury all wrapped in one. This is contrary to the tenets of modern day jurisprudence where one is presumed innocent until proven otherwise," says the petitioner.
Dr Magare also argues that Kenyans are currently suffering due to pile-up of cases at the courts, which he alleges can be attributed to the actions of President.
