The President’s powers to pick a Chief Justice from a list of three nominees and send the name to Parliament for approval have been nullified.
The High Court on Thursday declared unconstitutional amendments to the Judicial Service Act that gave the President the powers.
Prior to the amendments, the Judicial Service Commission (JSC) was mandated to submit only one name.
Ruling in favour of a petition by the Law Society of Kenya (LSK), Justices Richard Mwongo, Weldon Korir, Mumbi Ngugi, George Odunga and Joseph Onguto said allowing the amendments would violate the doctrine of separation of powers and the procedure stipulated in the Constitution on how holders of the office should be appointed.
“The amendments, if allowed, will amount to taking the people of Kenya back to the old process of appointment by the President, which they discarded when they enacted the new Constitution,” they said.
The Constitution says the JSC shall forward one name to the President for nomination as Chief Justice or Deputy Chief Justice but Parliament amended the Act to allow three names.
The judges said opening a window, even a small one, would blur the role of the JSC, Parliament and the President in the appointment of the Chief Justice or the DCJ.
“Allowing the JSC to forward three names may result in horse trading and mischief, which the Constitution intended to safeguard against,” reads the judgment.
In the petition, the LSK said the new law, which came into effect on December 15 last year, interfered with the independence of the Judiciary.
In a separate case, the High Court declared it mandatory for the President to appoint all judges whose names are forwarded to him by the JSC.
The ruling was in relation to another application by the lawyers’ body in 2014 contesting a decision by President Uhuru Kenyatta to appoint only 11 of the 25 judges recommended by the JSC.
The President appointed the other 14 last year.