Court declines to suspend law giving President appointment power

Wednesday January 6 2016

From right, lawyers Nzamba Kitonga, Tom

From right, lawyers Nzamba Kitonga, Tom Ojienda, Peter Wanyama and Michael Muchemi at the High Court on January 6, 2016. PHOTO | ANTHONY OMUYA | NATION MEDIA GROUP 

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The High Court has declined to suspend the adoption of a law that gives the President powers to appoint the Chief Justice and Deputy Chief Justice.

Justice George Odunga, however, certified the application by the Law Society of Kenya (LSK) as urgent, saying it has raised critical constitutional questions and should be heard expeditiously.

Justice Odunga directed parties in the case be served and set the hearing for January 13.

The LSK has in its application faulted the new law, which came into effect on December 15 last year, saying it has amended critical sections of the Judicial Service Act and therefore interferes with the independence of the Judiciary.

“The Act as amended fundamentally upsets the doctrine of power between the three arms of government and should be suspended because the independence of the judiciary is at stake.

“The Constitution has clearly stated that the Judicial Service Commission (JSC) shall forward one name of a qualified person to the president for nomination as Chief Justice or Deputy Chief Justice but the Act has come up with a formulation requiring JSC to forward three names,” said the LSK through Senior Counsel Nzamba Kitonga.

On Monday, the LSK appointed lawyers Kitonga, Prof Tom Ojienda, Michael Muchemi and Peter Wanyama to challenge the constitutionality of the new law on the grounds that it usurped the powers of the Judiciary in the appointment of the Chief Justice.


Mr Kitonga said the matter was urgent given that the Judiciary is currently involved in the recruitment of the Deputy Chief Justice and if the orders are not granted, there was a likelihood that the unconstitutional criteria prescribed in the amendment will be used.

The LSK further argued that the Senate and members of the public were not involved in the passage of the amendments as required under the Constitution thus making it unconstitutional.

Justice Odunga said the issues raised in the application were critical given that the amendments affect the independence of the Judiciary and interfere with the separation of powers.

“I am satisfied that the matter is urgent and ought to be heard expeditiously but I cannot issue orders at this stage to suspend the implementation of the law because there will be no prejudice suffered within the seven days given ... the inter-parties hearing,” said the judge.

The Law Society of Kenya is challenging the constitutionality of recent changes in the law that require the Judicial Service Commission to give the President three nominees for the post of Chief Justice and Deputy Chief Justice.

The Judiciary is expected to appoint a new Chief Justice, as the current holder, Dr Willy Mutunga, is set to retire in June this year when he attains the age of 70 years.

Deputy Chief Justice Kalpana Rawal, who is challenging her retirement in court, also turns 70 in January 15 this year.