Three Western diplomats want President Uhuru Kenyatta to appoint the 41 judges proposed by the Judicial Service Commission (JSC), who have not been able to assume office since July 2019.
In an op-ed, British High Commissioner Jane Marriott, US Ambassador Kyle McCarter, and EU Ambassador Simon Mordue said: “Resolve the delay in the appointment of judges to vacant positions. Where there are substantial allegations of corruption, these should be swiftly and transparently addressed, while not delaying the appointment of other judges.”
President Kenyatta has refused to appoint the judges to the Court of Appeal, the Environment and Land Court and the Employment and Labour Relations Court, saying some of them have integrity issues.
Citing two court rulings directing the President to appoint the judges, Chief Justice David Maraga last month appealed to him: As your Excellency has pledged in the past, you respect the rule of law. I urge you to now demonstrate that faith by complying with those two court orders. In doing so, you will alleviate much suffering for Kenyans seeking justice in our courts.”
SOLEMN ROLE
But the next day, Attorney-General Kihara Kariuki, who also sits on the JSC, responded: “His Excellency the President will not abdicate his role as Head of State and government to appoint persons with a questionable record to serve the nation in the solemn role of judge.”
Mr Maraga says that the allegations against the judges have neither been brought before the JSC nor made public for the judicial body to act on them.
The CJ noted that the President has representation in the JSC through the AG, and two other people he nominated, which the CJ believes should have been used to raise the issues during the interview, when the judges when they had an opportunity to respond.
The diplomats praised the strides Kenya had made in the judicial sector, including the expansion of infrastructure and the introduction of mobile courts, saying they had increased access to justice.
The envoys also called on the Executive and the Judiciary to “work together, independently but co-operatively”, to strengthen collaboration between the police, lawyers, prosecutors and judges.
JUDICIARY FUND ACT
While asking the Judiciary to ensure that funds are spent wisely, the diplomats called for the enactment of the Judiciary Fund Act, which would give a percentage of the national revenue to the Judiciary, unlike the current situation where the budget is heavily controlled by the Executive.
The diplomats also called for full funding of the National Legal Aid Service to enable it to serve the poor, provide legal representation for poor accused people.
“In order for criminal justice institutions to deliver and be held to account, they need to be given adequate resources, while oversight mechanisms are key for accountability,” they said, calling for far-reaching reforms in the National Police Service.
“Kenya deserves to be proud of its standing as a democracy, with a vibrant economy underpinned by the rule of law and independent institutions. There remain many challenges, but Kenya has the capacity to overcome them. The greatest gains will be delivered by ever stronger and more effective independent institutions, which work closely and constructively together,” they said.
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