Blow to Uhuru as court orders judges be sworn in within 14 days

President Uhuru Kenyatta and C Martha Koome with Judges of the Environment and Land Court at State House, Nairobi. June 4, 2021. [PSCU, Standard]

President Uhuru Kenyatta suffered another blow after the High Court declared that he is in violation of the Constitution by refusing to appoint six judges.

That is a big victory for the six who have waited for over two years to be appointed since their nomination by the Judicial Service Commission (JSC).

A three-judge bench of justices George Dulu, William Musyoka and James Wakiaga ordered the president to appoint the six judges within 14 days, failure to which they will be deemed to have been formally appointed and sworn in by Chief Justice Martha Koome.

The decision means that they have stripped the president of his powers in the process of appointing judges if he fails to act within the next two weeks.

The ruling was a relief to High Court judges Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir who had been promoted to the Court of Appeal but the president declined to appoint them on account that they did not meet the threshold for appointment.

President Kenyatta had also rejected the appointment of High Court Registrar Judith Omange and Mombasa Chief Magistrate Evans Makori as Judges of the Environment and Lands Court.

The court held that the president was in violation of the Constitution by failing to appoint the six over integrity questions which had already been handled by the JSC when they conducted the interviews.

“The president had no power to reject the six judges since his role was only to facilitate their appointment as the Head of State.

"He also disobeyed a court order that had compelled him to appoint all the 41 judges who were recommended by the commission,” ruled the judges.

According to the judges, there had to be a way out of the constitutional stalemate created when the president appointed 34 judges in June and left out the six since the Constitution did not contemplate a situation where the appointing authority refuses to perform his functions.

They ruled that there is no legal requirement that it must be the president to appoint judges since in other countries, judges are appointed and sworn in by their respective chief justices.

According to the judges, there had to be a way out of the constitutional stalemate. [Elvis Ogina, Standard]

The judges stated that since the Constitution does not expressly provide for the place, time and the person to swear in judges, there is nothing that bars the CJ to perform the function and the judges to be deemed as having been duly appointed to their respective positions.

“It is the president’s duty to do what the Constitution requires him to do or what the court has declared that he should do because failure to do so is open defiance.

"The court previously made it clear that he appoints all the judges but his persistent failure has to come to an end,” they said.

They added that the president already had representatives at JSC and if he had any issues against the judges, he would have presented before the commission during the interviews.

They added that the president has no choice but to appoint the judges since he cannot purport to reopen the issue of their suitability which was dealt with by the JSC and that the only thing to do if he refuses is to have the judges assume office.

“We proceed to declare that the judges are duly appointed since it is the only way to deal with the constitutional crisis caused by the president.

"They can assume office and be assigned their duties if the president fails to act,” they ruled.

They also ruled that Attorney General Kihara Kariuki conflicted himself when he participated in the JSC interviews that recommended the judges only to turn back and support the president on the integrity of the six.

Attorney-General Kihara Kariuki. [Chemtai Lochakapong, Standard]

But they declined to declare the AG unfit to hold public office, ruling there was no evidence that he had misadvised the president.

Dispute over the six judges started in July 2019 when the JSC recommended 41 individuals to be appointed to the Court of Appeal, Environment and Lands Court and the Employment and Labour Relations Court.

In February 2020, the High Court issued an order for the president to appoint the judges but he declined on account that some of the nominees were not suitable for the positions.

He, however, later appointed 34 in June and left out the six.

The suit to compel the president to appoint the remaining six was filed by Katiba Institute, which argued that the president had discriminated the six judges when he had no authority to decide who joins the Judiciary.