Pressure continues to mount on President Uhuru Kenyatta to either appoint the six judges he left out or to table the evidence against them.
Judges and magistrates have added their voice to the growing calls for the President to reconsider his decision, arguing that the Judicial Service Commission (JSC) has no powers to review the appointments once they recommend that a person be appointed as a judge.
Through lawyer Dunstan Omari, the Kenya Magistrates and Judges Association (KMJA) said Uhuru had no powers to decline appointing judges as recommended by the JSC and that they would be forced to sue him if he does not appoint the six.
“None of the six judges has ever been given reasons why the President declined to appoint them. Let all the judges be appointed, and if they have any issue against them, let the President file the complaints so that we can cross-examine the issues,” said Omari.
Uhuru last week appointed 34 of the 40 nominees, but left out High Court Judges Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir, alongside registrar of the High Court Judith Omange and Chief Magistrate Evans Makori.
Justices Ngugi, Odunga, Muchelule and Korir were recommended for appointment to the Court of Appeal while Omange and Makori were nominated to the Environment and Lands Court.
Uhuru said the six did not meet the threshold for appointment as judges to the designated courts and referred their nomination back to JSC. KMJA however stated that referring the nomination back to JSC had implications that the judges and the two magistrates had integrity issues.
“JSC have no power to revisit what they have already done and whereas the judges have the security of tenure, the two magistrates have been exposed by the President’s decision, which can lead to their removal from office without any valid reason,” said Omari. This was the second time KMJA was raising concerns over the decision to lock out their colleagues having issued another statement on Friday.
Omari said the judges and magistrates are going to monitor the three cases already filed to compel the President to appoint their colleagues before deciding whether to file another suit.
The suits have been filed by lawyer Adrian Kamotho, Katiba Institute and Dr Benjamin Magare where they are seeking a declaration that the president’s partial appointment of the 40 judges recommended by the JSC is illegal, null and void.
Kamotho argued that the President has discriminated the six judges when he has no such authority to decide who joins the bench as was ruled by the court in February last year. “The appointments made by the President are in scandalous breach of the court’s judgment, which declared that he has no mandate to review, reconsider or decline to appoint persons recommended for appointment as judges by the JSC,” said Kamotho.
Should Kenyatta fail to appoint the six, the lawyer asked the court to impose sanctions for contempt of court, including an order for committal to jail. He claimed in his petition that the President’s refusal to appoint the judges was calculated to frighten, intimidate, manipulate and arm-twist the mindset of judicial officers who had been giving unpopular but lawful decisions against the Executive.
Dr Magare has also asked the court that the six judges be deemed to have been appointed despite the President’s refusal to gazette them and that they be allowed to assume new roles in the designated courts they were appointed to.
“We cannot continue being held hostage by the President. As a country, we need to entangle ourselves using our constitution so that we can find a solution to the dispute. There is no need to fear anything since the sovereign power belongs to the people,” said Magare.
The cases are scheduled for hearing tomorrow.
Makueni Senator Mutula Kilonzo Jnr argued that the refusal to promote judges to the Court of Appeal amounted to a veto on the powers of JSC.
“They cannot act on the memo on the suitability of the said judges or rescind their decision,” said Kilonzo Jnr.
Other politicians who have waded into the matter include Elgeyo Marakwet Senator Kipchumba Murkomen who said all eyes were now on Chief Justice Martha Koome and how she will navigate the matter.
“Our eyes are fixed on the liberation 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 Chief Justice Koome. Over to you madam CJ,” said Murkomen.