The High Court has resolved the tussle between the Executive and the Judiciary over the appointment of judges.
President Uhuru Kenyatta has all along acted unlawfully by failing to appoint the judges who had been duly interviewed and vetted by the Judicial Service Commission (JSC) and found suitable for the jobs.
Although Attorney-General Paul Kihara, himself a member of the JSC, has issued a notice to appeal the ruling.
But the fundamentals laid out by the High Court, and given the provisions of the Constitution and JSC Act, provide express direction on the process of appointment of judges.
What is puzzling in this case is that reasons advanced by the Executive why President Kenyatta had not made appointments were spurious to the extent that extraneous matters were introduced after the process had been completed.
mong others, the Executive argued that the State had some damning evidence from the National Intelligence Service (NIS) that deeply indicted some of the candidates.
Yet such information was never submitted to the JSC or during the entire process so that the affected could be put to task on them.
Given the contestation that has persisted between the Executive and the Judiciary, the real reason for the delay cannot be mistaken.
All that is part of strategy to destabilise and weaken the Judiciary,; deny it of staff and derail its operations.
President Kenyatta’s disdain for the courts since the annulment of his presidential election in 2017 is unambiguous.
As currently constituted, the Judiciary is deeply understaffed. For instance, the Court of Appeal has suspended sittings outside Nairobi because of shortage of judges compounded by insufficient funding.
Progressively, the number of Court of Appeal judges has fallen from the optimum 27 to 15, making it pretty difficult for them to conduct rotational sittings outside Nairobi. Other courts are worse off.
At the same time, the Executive has resorted to squeezing the Judiciary financially.
In the past two years, the National Treasury has consistently cut Judiciary’s budget and the net result is that it cannot carry out its mandate.
Late last year, Chief Justice David Maraga came out publicly to lament about the frustrations visited on the Judiciary, including being starved of funds and personnel, and judges humiliated at national functions.
Recently, President Kenyatta and Mr Maraga made amends and pledged to work collaboratively, given the interdependence between the two arms of government. But the reality is yet to sink.
Now is the moment to demonstrate that sea-change of heart. With the High Court’s ruling, the Executive has to do the right thing.
Attempts to manipulate processes to fight other extraneous battles are not acceptable. Independence of the Judiciary is anchored in the Constitution and has to be respected.
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