In an unprecedented move, the High Court yesterday nullified the new law that gave the President more leverage in the appointment of the Chief Justice and Deputy Chief Justice.
A five-Judge bench outlawed recent changes to the Judicial Service Act that would have limited public participation and made it mandatory for the Judicial Service Commission (JSC) to nominate three finalists for the President to pick one for approval by the National Assembly.
The decision comes at a critical phase when the JSC has already put in place the necessary machinery to invite prospective candidates for the plum job following the impending retirement of Chief Justice Willy Mutunga on June 16.
The Chief Justice is a powerful position in the pecking order of Government since the holder is only surpassed by the Speakers of the National Assembly and the Senate, the Deputy President and the President in the power hierarchy. The CJ is the President of the seven-member Supreme Court, the chairman of the National Council on the Administration of Justice and chairman of the JSC.
The High Court had suspended the implementation of the radical changes made to the JSC Act through the Statute Law (Miscellaneous) Amendment Bill, 2015. The controversial clauses were condemned by the Law Society of Kenya (LSK), which petitioned the court to declare it invalid and unconstitutional.
The LSK had protested that the Omnibus Bill presented to Parliament by the Attorney General Githu Muigai offended the supreme law and amounted to blatant interference with the independence of the Judiciary. The changes were in breach of the doctrine of separation of powers that shielded the powers of the Executive, the Legislature and the Judiciary, LKS argued in a petition.
Initially, Justice Isaac Lenaola acknowledged that the petition raised substantial issues of law that required urgent resolution. He had issued temporary conservatory orders blocking the implementation of the law pending the outcome of the case.
And yesterday Justices Richard Mwongo, Joseph Onguto, George Odunga, Weldon Korir and Mumbi Ngugi declared that the restructuring of the JSC Act in relation to the appointment of the Chief Justice and Deputy CJ was unconstitutional and unjustified.
Public participation
“There are no reasonable and convincing grounds to alter the mechanism of appointment to the two key positions in the Judiciary,’ said the judges, adding: “This would alter the spirit and letter of the Constitution by telling the JSC how to do its work.”
They agreed with submissions by senior counsel Tom Ojienda and Nzamba Kitonga and lawyers Michael Muchemi and Peter Wanyama that public participation was very crucial in the enactment of laws.
Of particular concern was that the contentious bill was hurriedly taken through Parliament without consultations with stakeholders.
Interestingly, the new law required the JSC Secretary to submit three names of nominees to the President to pick one of them for consideration and approval by the National Assembly. In case the House rejected the nominees , the JSC was expected to repeat the exercise.
Already, the JSC Secretary, who doubles as the Chief Registrar of the Judiciary, Anne Amadi, has issued the timetable for the recruitment of prospective candidates to replace Mutunga.
The JSC had suspended recruitment of successor of Deputy Chief Justice Kalpana Rawal, who left office on January 15 upon attaining the 70-year retirement age.
The Court of Appeal will this morning determine the fate of Justice Rawal in a case in which she has resisted “early” retirement.
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