Lobby asks judges on Supreme Court petition to quit

A decision on the constitutionality of the appointment of five Supreme Court judges may take longer after the petitioners indicated their intention to file a notice asking judges hearing the case to disqualify themselves.

If the motion goes through and the three judge bench disqualifies itself, it will mean the matter will go back to the Chief Justice to reconstitute another bench to determine the petition that led to the stopping of the swearing in of five Supreme Court judges.

Lawyer Alice Wahome representing the Federation of Women Lawyers (FIDA)-Kenya told Justices Mohamed Warsame, John Mwera and Philomena Mwilu that the petitioners feel intimidated and requested the application for disqualification be heard in chambers.

Mr Eric Komollo, representing the International Center for Policy and Conflict as an interested party said they did not join the petition as spectators but to give meaningful contribution to the fair determination of the matter hence their intention to seek the disqualification.

The application was opposed by lawyer Paul Muite for the Judicial Service Commission (JSC) who said it was a calculated move by the petitioners to deliberately derail the case.

Mr Muite said it was ironical for the petitioners to say they want an expeditious hearing of the matter yet they keep bringing their applications in instalments.

“What they are doing is not fair to the judges and to the interest of justice. Questions arise as to why they keep on bringing on fresh application when the case comes up for hearing,” said Mr Muite.
He was supported by Ms Muthoni Kimani, representing the Attorney General who questioned the conduct and motive of the petitioners.

She said that when the matter came up last week, the petitioners opposed the CJ’s appointment of the three judges and wanted the case be referred back to him so that he delegates the appointment to the Deputy CJ or the Principal Judge.

“It seems the applicants are not in the interest of justice but the interest of delay. Why present an application and when it is overruled, you present another? It would have been suitable if they presented their concerns at once,” said Ms Muthoni.

She said that it is only fair that the petition be heard on the conservatory orders issued by Justice Jeanne Gacheche that stopped the swearing-in of the judges instead of bringing up many issues that will derail the case.

The judges ruled that they cannot hear the application in chambers as requested by the petitioners and directed that they file and serve their application explaining why they want the judges to disqualify themselves before the matter comes up for hearing tomorrow (Wednesday).

The swearing-in of the five Supreme Court Judges was stopped by the High Court following an application by the Federation of Women Lawyers (FIDA) Kenya, and six other organizations.

They argued that the appointment of the five – Justice Philip Tunoi, Justice Jackton Boma Ojwang’, Justice Mohamed Ibrahim, Dr Smokin Wanjala and Ms Njoki Ndung’u to the Supreme Court did not conform to the constitutional provision of gender equity.

The hearing of the petition has failed to kick-off in three different occasions as a result of emerging submissions being filed by the lawyers.

When the matter first came up for hearing before Lady Justice Jeanne Gacheche, Mr Muite said she could not hear the matter as a single judge because the Constitution provides that any matter certified by the court as raising a substantive question of law shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.

The matter was referred to the CJ who formed a three judge bench only for the petitioners to file another application seeking that the CJ delegates the duty of appointing the judges because he was enjoined in the suit by virtue of his capacity as the JSC chairman.

However, the application was dismissed by the judges on grounds that it was misconstrued and lacked merit since it is only the Chief Justice who has the Constitutional power to appoint a bench without a provision to delegate the authority.