A standoff over the appointment of judges has put the Judiciary in the last place it wanted to be — being made to defend the choices as State House refuses to approve them.
It is the same scenario Attorney-General Kihara Kariuki finds himself in, having to choose between standing with President Uhuru Kenyatta and turning his back on choices he helped make as a member of the Judicial Service Commission (JSC).
Questions have also been raised as to where the Law Society of Kenya (LSK) stands on the matter.
The society, which has been unusually quiet, applied to be enjoined in the case on Friday, amid claims that its leadership is pandering to the State.
“The deafening silence from LSK is telling,” said lawyer Peter Wanyama. “The society has been captured.”
A former LSK president, who requested to speak on background, said he is extremely disappointed with LSK’s inaction. “The government is happy with a disjointed LSK as this gives it room to violate people’s rights, mess the economy and steal without checks,” he said.
Though JSC and Chief Justice David Maraga have been listed as interested parties in the petition by lawyer Adrian Kamotho, and have retained a lawyer to represent them, both have indicated to the court that they would not take any position on the matter, leaving only the Attorney General to respond to the petition.
High Court judge James Makau directed the parties to convene a meeting of all the parties and the advocates within 14 days to explore an out-of-court settlement and file consent.
If not, the parties will be back in court after 21 days for the hearing, which will be on November 13.
“When we were in court we agreed that as a mark of good faith the Attorney General would convene the meeting – he would give the venue and the time to the parties. So far that hasn’t happened. Probably they are waiting for the president to come back,” said Mr Kamotho.
Judiciary insiders told Sunday Nation that their position not to file their response was out of concern that that would be re-opening a process that had been closed to the disadvantage of the nominees who had been subjected to public grilling.
Beyond that, there is concern that a back-and-forth with the president through submissions and affidavits could disadvantage the judiciary which continues to be ‘revisited’, with the fear that they could face punishment through budget cuts and personality attacks.
JSC had submitted 41 names of serving judges and lawyers to be appointed as judges of the Court of Appeal, Environment & Land Court, and Employment & Labour Relations Court but which President Kenyatta has refused to appoint some three months later.
The delay in making the appointments is the substance of Mr Kamotho’s petition currently before court. He is seeking the court to declare that the president’s “unreasonable delay” is unconstitutional and that the court should direct that the nominees assume office without further reference to the president, “having been duly recommended for appointment as required by the constitution and the law.”
“An order of mandamus be and is hereby issued directing the respondent and the interested parties to take immediate measures and/or steps to enable the persons recommended for appointment as judge of the Court of Appeal on July 22, 2019, judge of the Environment and Land Court and judge of the Employment and Labour Relations Court, on August 13, 2019, discharge their constitutional mandate,” states one of Mr Kamotho’s prayers.
In an affidavit in response to the petition, Head of Public Service Joseph Kinyua said the president had not appointed the 41 nominees because JSC had not consulted with other institutions namely the National Treasury, Salaries and Remuneration Commission (SRC) and parliament over financial implication of the appointments, that there are enough judges and therefore no need for fresh appointments, and most sensational of all, that “the president has received adverse reports in respect to some of the persons recommended for appointment as judges after the names of the said persons were published in the media.”
For JSC, taking on the president head-on on this matter has become a hot potato with at least one JSC member commenting that “we will let the court make its determination.”
For Mr Kihara, the irony is that while he is a JSC member who took part in the interviews of the persons eventually recommended for appointment, he now has to stand with and support President Kenyatta on the delay in appointing the judges.
The Attorney General sits in the JSC by virtue of his office and is one of the four presidential appointees that serve in the commission out of 11 members.
The other three are the representative of the Public Service Commission Patrick Gichohi, and the two representative of the public, Felix Koskei and former Kenyatta University vice-chancellor Olive Mugenda.