A lawyer fighting for the swearing-in of the 41 judges President Uhuru Kenyatta declined to appoint has filed a fresh petition for them to assume office without his nod.
Adrian Kamotho Njenga wants the tradition of taking oath of office before the Head of State to be left out.
Mr Njenga says that since the judges got nominated by the Judicial Service Commission (JSC) for appointment on July 22, 2019, and the President delayed to facilitate their swearing-in, the appointments have ripened “by operation of law”.
He is basing his case on a judgment by the High Court on February 6, stating that the appointment of persons recommended as judges should be stringently finalised within 14 days.
“Accordingly, as held by the High Court, the President is only entitled to 14 days and no more since the powers of appointment do not linger in perpetuity. Constitutionally, the President has absolutely no powers to alter, amend, enlarge or extend constitutional timelines pronounced by a competent court of law,” says Mr Njenga.
14 days only
The 18-page petition indicates that the President cannot legally appoint the 41 judges, having failed to do so within the 14-day period.
He has listed the 41 appointees as interested parties in the case as well as the Chief Justice David Maraga.
Mr Njenga says the President’s constitutional powers in relation to the appointment of the 41 judges have “perished, abated and terminated in their entirety”.
“Upon the failure by the President to perform his constitutional role within the prescribed time, the appointments of the 41 interested parties constitutionally crystallised and are now overdue,” he says.
He wants the court to urgently intervene and certify the petition as urgent to enable the appointees assume their respective offices, in order to unclog the wheels of justice and thereby stem further suffering by Kenyans.
“The critical shortage of judges of superior courts continues to paralyse the constitutionally designed matrix of dispute resolution, thereby devastating the citizenry right of access to justice. The shortfall in the number of judges of superior courts is tremendously weighing down on the administration of justice in Kenya,” says the lawyer.
He adds that the shortage of judges both at the High Court and Court of Appeal has caused a case backlog and continued to deny the citizenry prospects of timely access to justice.
Mr Njenga adds that the careers of the 41 appointees lie in limbo, while their reputation and integrity continues to be construed in bad light, yet no allegations have ever been tabled, substantiated or proved against them.
“Article 166 (1) (b), as read with Article 172 (1) (a) of the Constitution, requires the President to appoint judges of Superior Courts strictly in accordance with recommendations of the JSC,” the petition states.
“It is in the interest of justice that this matter be heard forthwith to secure the sanctity of the judicial process and buttress the supremacy of the Constitution.”
The lawyer says judges of superior courts are custodians of the law so it is necessary that their assumption of office is undertaken within strict constitutional parameters.
The petition awaits directions since judges are on vacation.
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