Allies of ODM leader Raila Odinga and Wiper leader Kalonzo Musyoka have criticised President Uhuru Kenyatta’s refusal to appoint six of the 40 judges recommended by the Judicial Service Commission (JSC), bringing into question the solidity of the Handshake.
President Kenyatta on Thursday appointed 34 of the 40 judges who were recommended by JSC. In his defence, the President said his decision to leave out the six was guided by the letter and spirit of the law, which he swore to defend, and the desire to serve Kenyans well.
“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.
But a section of ODM and Wiper MPs were not holding back over what they termed as an unconstitutional act by the President.
“On this we must be plain, the President cannot select which judges to gazette after the JSC recommendation,” said Rarieda MP Otiende Amollo.
ODM’s national director of political affairs, Opiyo Wandayi, also called out the President for cherry-picking judges for appointment.
“The President's power in the appointment of judges is restricted to simply gazetting the names recommended by the JSC. The role is ceremonial and a mere formality,” said Mr Wandayi.
Equally not impressed by the President’s decision was Homa Bay Town MP Peter Kaluma who hoped the decision to leave out Justices Joel Ngugi and George Odunga was not because of their decision on the Building Bridges Initiative (BBI).
“Together with judges (Aggrey) Muchelule and (Weldon) Korir, they are among our best brains in the bench,” he said.
Wiper Senator Mutula Kilonzo Jr described the decision by the President as “a veto on the powers of JSC”. He added: “They cannot act on the memo on the suitability of the said judges or rescind their decision. Meanwhile, the judges are presiding over matters this morning. This is untidy Hon AG,” said the Makueni senator.
Mr Odinga himself has, however, kept off from commenting on the issue. The Sunday Nation understands that as a party, ODM does not wish to be drawn into the matter. Instead, the party and Mr Odinga are of the view that the JSC should take up the memo from the president explaining his rejection of the six nominees and help the judges and the public understand the situation.
The party’s chairman, Mr John Mbadi, says that the President’s critics need to first appreciate that at least there are 34 new judges who will help to reduce the huge backlog.
“The fact that there are 34 new judges is a step in the right direction. Really, some concessions have to be made,” said Mr Mbadi. The Suba South MP said Kenyans were suffering and a middle ground had to be found.
On his part, Amani National Congress (ANC) leader Musalia Mudavadi, through his spokesman Kibisu Kabatesi, said he was constrained from commenting because of the appeal by the Attorney-General that is pending before the Court of Appeal.
Independence party Kanu, however, rushed to support the decision by the President to appoint the 34 judges to the Court of Appeal, Employment and Labour Relations Court and Environment and Land Court.
“This is undue pressure on the President. When you give somebody a list, there has to be other factors to be considered, and also to give the President that right to know more than just the decision that was made by the panel,” said Kanu Secretary-General Nick Salat.
According to Mr Salat, JSC should accept the President’s decision and provide another list.
“He should not do anything to please anybody. As he puts it, he is the head of the nation. For us, the President has made a decision and unless he is given another list, I think that should be it,” he said.
The decision to leave out six of the 40 nominees has drawn the ire of lawyers, political leaders and civil society.
Katiba Institute, which had earlier on moved to court to stop the swearing in of the new 34 judges, did not get the orders they sought to stop the ceremony, which was conducted at State House.
Instead, Justice James Wakiaga certified the application urgent and directed that they serve the respondents, namely President Kenyatta, the Attorney General and Chief Justice Martha Koome. The matter has been fixed for mention on Wednesday, June 9.
The Constitution provides that the JSC does the recruitment and the President is only left with the ceremonial role of gazetting and presiding over the swearing in of the judges of the superior courts.
However, State House, with the backing of the State Law Office, argues that the President should be allowed to have a say on who is appointed as judge.
Before the 2017 elections, the Executive unsuccessfully tried to amend the law so that JSC would recommend multiple names for persons to be appointed as Chief Justice.
JSC in 2019 recommended 41 people for appointment as judges of Court of Appeal, Employment and Labour Relations Court and Environment and Land Court. A standoff ensued as the President refused to appoint them saying that the National Intelligence Service (NIS) had provided him with confidential dossiers against some of the nominees.
A High Court decision compelling the President to appoint the 41 was not implemented and AG Kihara Kariuki moved to appeal the decision, but no orders have ever been given and the matter remains pending.
In the long wait for appointment, one of the nominees for judge of the Employment and Labour Relations Court, Harrison Okeche, died in October last.
On Friday the President swore in the 34, leaving out justices Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir, as well as chief magistrate Evans Kiago and Registrar of the High Court Elizabeth Omange.
It is not the first time President Kenyatta has cherry-picked judges for appointment. In 2014, he initially appointed 11 judges from a list of 25. He appointed the remaining 14 judges almost a year later in May 2015.
