Katiba Institute seeks to block partial appointment of judges

A lobby has gone to court to challenge the appointment, gazettement and swearing in of some of the 41 judges who had been nominated for promotion.

In a fresh suit filed at the High Court, Katiba Institute has sued President Uhuru Kenyatta, Attorney General Paul Kihara Kariuki and Chief Justice David Maraga.

NOMINATED JUDGES

According to the lobby, there are reasonable grounds to fear from the press statement issued by the Attorney General on behalf of the President on a plan to appoint only a few of the nominated judges waiting their promotion.

“A partial appointment of the nominated judges would illegally serve a constructive removal of any nominee who is already sitting as a judge and is excluded from the partial appointment, this would not only be unconstitutional but highly stigmatising," said lawyer Dudley Ochiel.

The group argued that the anticipated selective appointment of judges would undermine the functions and powers of the Judicial Service Commission and the functioning of the Judiciary.

They claimed that it would be an improper extension of the role of the Executive and create a constitutional crisis.

FAIR TRIAL

"Should the Executive appoint only a subset of the judges-in-waiting, it would constitute an improper and unconstitutional extension of the role of the Executive," said Mr Ochiel.

The lobby alleged that the President's refusal to appoint the 41 judges has significant effects on the right to fair hearing, right of access to and administration of justice, and right to fair trial.

It also alleged that there is no prejudice to the sued parties if all the judges-in-waiting who have been duly recommended are vetted with the active participation of the AG are appointed into office.

This is a third case challenging the delayed process in appointing 41 judges who were nominated for promotion to serve in the Court of Appeal, Environment & Lands Court and the Employment & Labour Relations Court.

Recently, the CJ blamed President Kenyatta for the shortage of judges as well as continuous disobedience of court decrees on the part of government.

The High Court ordered that the President should appoint the 41 judges who had already been nominated. But the AG filed a notice of appeal and failed to file the case at the appellate court.

While the CJ blamed the President for the delay, the AG defended President Kenyatta.

INTEGRITY ISSUES

The President has been reluctant to appoint the 41 on grounds that some of the judges in the list had integrity issues and had been flagged by the National Intelligence Service.

However the Judicial Service Commission has often insisted that the state has declined to provide the evidence against the judges alleged to have integrity issues.

JSC, Kenya Human Rights Commission, Kenya Judges and Magistrates Association and the Kenyan Chapter of the International Commission of Jurists are listed as interested parties.

Katiba Institute wants court to issue an order stopping the President from making any appointments, gazetting and swearing in a partial list of the 41 nominees.

It also wants the CJ and the JSC barred from assigning judges, who might be appointed from a partial list of the 41, any duties.