The Kenya Magistrates and Judges Association (KMJA) as well as the Law Society of Kenya (LSK) have hit out at President Uhuru Kenyatta for what they termed as the selective appointment of judges.
This comes a day after President Kenyatta finally appointed judges who were recommended by the Judicial Service Commission (JSC) over two years ago; however, in a shocking turn of events, he appointed 34 judges and rejected six.
KMJA, in a statement to newsrooms on Friday, said President Kenyatta is constitutionally bound to appoint all judges recommended by the JSC.
“Once the JSC has recommended names for appointment, the President has no power to tinker with the names. Any such attempt amounts to interference with the Institutional Independence of the JSC, violation of the Constitution and in particular, the rule of law which the President swore to uphold,” read the statement signed by KMJA Secretary General Derrick Kuto.
“The decision by the President to leave out the six is therefore baffling, unfounded and patently unconstitutional. The President is setting a very bad precedent for this country, one of not following the rule of law and disobedience of court orders.”
The magistrates and judges association hence urged the Head of State to immediately gazette the six that were left out as they also presently serve on the bench.
LSK, in a subsequent statement, reiterated the KMJA’s stand, adding that even the failure of the President to appoint the judges within a reasonable timeframe of 14 days was in itself a violation of the Constitution.
The society held that once JSC makes its recommendations, then the President has no option but to merely formalize the appointments.
“The President cannot change the list, review it or reject some of the names. He must appoint the persons as recommended and forwarded to him by the Judicial Service Commission,” read the statement signed by LSK CEO Mercy Wambua.
“The Council is concerned and condemns the failure by the President of the Republic of Kenya to appoint all the Judges as required under Article 166 of the Constitution. This is an outright contravention of the Constitution of Kenya, a blatant disregard of the Rule of Law and undermines the independence of the Judiciary.”
Ms. Wambua further added: “We wish to remind the President that the Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government. Further, that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.”
LSK hence called upon President Kenyatta to adhere by the law and appoint the remaining 6 judges, failure to which they would move to court.
The council also condemned President Kenyatta’s remarks against the Judiciary during the Madaraka Day celebrations in Kisumu.
“In his remarks, the President noted that, indeed Kenya’s Constitution has been celebrated far and wide as a progressive Constitution but soon thereafter went on a rampage onslaught against the Judiciary for among others, its role in nullifying the 2017 Presidential Elections and in the Judgment on the Building Bridges Initiative/Constitution Amendment Bill, 2020,” said the LSK CEO.
“We invite the President of the Republic of Kenya to respect and uphold the Constitution and specifically, judicial independence that requires judicial officers to perform their duties free of influence or control by other actors, whether governmental or private.”
Katiba Institute has since filed an application contesting the appointment of 34 judges and omission of six others by President Kenyatta.
The institute termed the move by President Kenyatta as cherry-picking, saying the swearing in of the 34 would violate the Constitution as well as the rights of the remaining six.
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