Lawyers vow to challenge changes to JSC Act

Law Society of Kenya chairman Erick Mutua addressing journalists at the Law society's offices on November 16, 2015. LSK will file a case in court to challenge the constitutionality of recent changes that requires the Judicial Service Commission to give the President three nominees for the post of Chief Justice and Deputy Chief Justice. PHOTO | GERALD ANDERSON | NATION MEDIA GROUP

What you need to know:

  • The Law Society of Kenya will challenge the constitutionality of recent changes in the  law  that require the Judicial Service Commission to give the President three nominees for the post of Chief Justice and Deputy Chief Justice.
  • Article 166 of the constitution does not envisage a situation where the President has any kind of discretion in the appointment of the CJ, his deputy or any judge

The Law Society of Kenya will file a case in court to challenge the constitutionality of recent changes in the  law  that require the Judicial Service Commission to give the President three nominees for the post of Chief Justice and Deputy Chief Justice.

In a statement sent to newsrooms, LSK chairman Eric Mutua said the changes to the Judicial Service Commission Act were an affront to the independence of the Judiciary.

“The said amendments to the law effectively grant to the executive powers over the appointment of the Chief Justice and his Deputy. That law is not only unconstitutional but greatly undermines the independence of the Judiciary,” said Mr Mutua.

He said Article 166 of the constitution does not envisage a situation where the President has any kind of discretion in the appointment of the CJ, his deputy or any judge.

IDEAL SITUATION

“Constitutionalism dictates that an ideal situation (as far as the independence of the judiciary and separation of powers is concerned) should be the one in which an independent constitutional body is charged with the responsibility of determining the best candidate for the CJ,” said Mr Mutua.

The constitution in Article 166 states: The President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance  with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly.

Mr Mutua said the amendments which were contained in the Statutes Law (amendment) Bill, 2015 and assented to by the President in December last year did not have public participation.

“The fact that such a far-reaching law was passed through an omnibus miscellaneous amendment deprives the public of their right of participation and debate. The LSK shall file a suit on Monday to challenge such law,” he said.

A petition on the constitutionality of the new clause will shape the succession of Chief Justice Dr Willy Mutunga. Dr Mutunga is set to leave office in June.