Court allows Maraga to swear in JSC three

For nearly seven months, the Judicial Service Commission has been conducting its business with the minimum number for a quorum, leaving no room for any member to miss a meeting.
But on Friday, the Court of Appeal gave Chief Justice David Maraga the green light to swear in Prof Olive Mugenda, Mr Felix Koskei and Mr Patrick Gichohi to the commission when it declined an application by Katiba Institute to stay a High Court decision that affirmed their nomination.

PARALYSING
The appointments of the three and that of Court of Appeal judge Mohamed Warsame to the JSC has been held up for months by the push-and-pull involving the Judiciary, the Legislature and the Executive, nearly paralysing operations of the commission and the Judiciary.

LITIGATION
“We decline to grant the order sought with the consequence that the notice of motion application dated July 12 be … dismissed with no order as to costs,” Appellate Court judges Daniel Musinga, Gatembu Kairu and Otieno Odek said.
Prof Tom Ojienda, a member of the JSC, said the ruling is a relief for the commission, “which has been operating under difficult circumstances”.
“The … protracted litigation regarding the appointment of these members has cost the JSC goodwill among a section of Kenyans and it is prudent that this matter comes to an end,” Prof Ojienda said.

TRANSACTING
“I urge the Chief Justice to move with speed and swear in these members so that the commission is able to work substantively at an all-inclusive level. We hope the case involving Justice Warsame will be over in due course.”
JSC has been transacting business with six commissioners instead of 11.
They commissioners are Mr Maraga, Deputy Chief Justice Philomena Mwilu, Justice Aggrey Muchelule, Law Society of Kenya representatives Ojienda and Ms Mercy Deche and Chief Magistrate Emily Ominde.

QUORUM
Attorney General Paul Kihara also sits in the JSC by virtue of his office.
“The commission has had a quorum. The only thing is that it is a strict quorum of six,” Prof Ojienda said.
“The three bring expertise and experience to the commission. I look forward to working with them.”

REVOKE
Katiba Institute lawyer John Ochiel said the court “has affirmed its power to revoke any appointment made contrary to the country’s Constitution.”
President Kenyatta nominated Prof Mugenda, Mr Koskei and Mr Gichohi on February 13 while Court of Appeal judges re-elected Justice Warsame for a second term in March.
However, the four are yet to take up their place at the commission as different sides flex muscles in the battle to control the JSC.

ABEYANCE
Justice Warsame’s re-election remains in abeyance as JSC and LSK fight to stop the National Assembly from proceeding with his vetting.
In a letter to the clerk of the National Assembly Michael Sialai in March, Chief Registrar of the Judiciary Anne Amadi said Justice Warsame “will not subject himself to the process of approval by Parliament before he can be formally appointed to serve in the commission”.

PROPOSED
“The JSC holds the considered view that the approval of Justice Warsame by the National Assembly is neither provided for in the Constitution of Kenya 2010 nor the Judicial Service Act 2011. The commission further takes the view that the proposed approval by the National Assembly as a commissioner of the JSC is unlawful, unconstitutional, a violation of the express provisions of Section 15(2) of the Judicial Service Act 2011 and undermines the independence of the Judiciary,” Ms Amadi said.
In March, High Court judge Roselyn Aburili issued a temporary order preventing the National Assembly from vetting Justice Warsame.

OPENNESS
The insistence of vetting the judge has raised questions in some quarters, with the feeling that some people in the Executive are uncomfortable having him sit in the commission and are looking at ways to lock him out.
The nomination of the three whose swearing in is now in the hands of Mr Maraga, had been challenged by Katiba Institute, who argued that there was no evidence to the effect that the nominations were subject to openness, diversity or fair competition.
“Kenyans were not told in advance of their applications, if or not they qualified for the nomination,” the organisation said.

INTEGRITY
“As a result, the section is devoid of national values, principles of good governance, integrity, transparency and accountability, besides fair administrative action.”
The High Court dismissed the application in July but the appeal is still pending.
The prayer for a stay order has however been dismissed.
Before Friday’s ruling, there were allegations that the Judiciary was stalling the swearing in of the three until Justice Warsame is also gazetted as required by the law.