Executive disregarded JSC advice to name regional court judge

As former Constitutional Implementation Committee chairman Charles Nyachae settles into his new position as judge of the East African Court of Justice, it is emerging that the Executive overlooked the recommendation by the Judiciary on the choice of Kenya’s nominee.

Mr Nyachae was sworn in as a judge of the regional court on Friday during the East African Community presidential summit in Kampala, Uganda, replacing Justice Isaac Lenaola of the Supreme Court whose tenure comes to an end this year.

The Nation has obtained correspondence between the EAC Ministry and the Judiciary in which Chief Justice David Maraga nominated Court of Appeal judge Hannah Okwengu for the job.

“The Honourable Chief Justice and President of the Supreme Court of Kenya has recommended Justice Hannah M Okwengu...for appointment to the East African Court of Justice,” Judiciary Chief Registrar Anne Amadi said in a February 14 letter.

MEET REQUIREMENTS

It was in response to ministry’s December 22 letter requesting the Judiciary to recommend a person to the regional court.

“The term of Justice Isaac Lenaola comes to an end on July 1. The EAC secretariat proposes that the 19th Ordinary Summit appoints a judge from...the republic of Kenya in the First Instance Division of the East African Court of Justice in good time,” the ministry said in the letter signed on behalf of the principal secretary by Dr Alice J.O Yalla.

The ministry also advised that the person recommended must meet requirements of the Treaty for the establishment of EAC which include integrity, impartiality and independence “and fulfils the conditions required in their countries for holding of such a high judicial office, or who are jurists of recognised competence in the partner states.”

Mr Nyachae campaigned for President Kenyatta during the August 8 General election and repeat presidential poll on October 26. He also contested the Kisii Senate seat on a Jubilee ticket.

EAC TREATY

Jubilee nominated Mr Nyachae to the East African Legislative Assembly but he did not make it.

“The EAC treaty is domesticated to form part of Kenyan law but it stipulates that appointments of judges to the court shall be by the summit of persons recommended by the partner states,” outgoing Law Society of Kenya president Isaac Okero said. “The law would require that recruitment be competitive.” 

A Judiciary source expressed disappointment that Justice Okwengu was not picked for the position.

“The nomination of judges to the regional court is normally run by JSC. It seems we have been ignored,” the source said.

The nomination of Mr Nyachae is not the only controversy Kenya has had with the court.

NOMINATION OF MEMBERS

In 2007, the government was condemned for attempting to force two judges to step down from hearing a case in which it was an interested party.

The case related to the nomination of members to the East African Legislative Assembly.

EACJ then disallowed the application for disqualification of then president of the EACJ, Moijo ole Keiwua.

Kenya was also directed to apologise to Justice Kasanga Mulwa — now deceased — for falsely pleading that he had been suspended from the High Court and faced investigations on corruption.