Kenya Judges and Magistrates Association (KJMA) has accused President Uhuru Kenyatta of violating the constitution and the Judicial Service Commission (JSC) over failure to appoint all the 40 judges as recommended by the JSC.
In a statement released on Friday morning and signed by its secretary general Derrick Kuto, KMJA says the President has no power to leave other judges out of his appointment.
“Once the JSC has recommended names for appointment, the President has no power to tinker with the names. Any such attempt amounts to interference with the institutional independence of the JSC, violation of the Constitution and in particular, the rule of law which the President swore to uphold. The decision by to leave out the six is therefore baffling, unfounded and patently unconstitutional,” said Kuto in a statement.
He said the President was to appoint all the judges as recommended.
“The President is setting a bad precedent for this country, one of not following the rule of law and disobedience of court orders. It is against this background that KMJA calls upon the President to respect the rule of law,” he said.
Kuto said Kenyans overwhelmingly voted for the current constitution and gave the JSC powers to recommend judges for appointments.
“Prior to the promulgation of the Constitution of Kenya 2010, the President had power to appoint judges. Kenyans voted to have a Constitution that gave JSC the power to recommend judges for appointment by the President. The JSC, in exercise of its mandate under the Constitution and the Judicial Service Act, nominated 41 judges for appointment to the Court of Appeal, Employment and Labour Relations Court and Environment and Land Court. One has since passed on. May his soul rest in peace,” he said.
He added; “In petition Number 369/19, the High Court of Kenya pronounced itself on this issue that the President is constitutionally bound by the recommendation made by JSC in accordance with Article 166(1) as read with article 172(1) (a) of the Constitution on the persons to be appointed as judges and that the President’s failure to appoint the persons recommended as judges violates the Constitution.
“The President vide gazette notices number 5233, 5234 and 5235, appointed honorable judges to various courts and in a shocking turn of events, the President declined to appoint six (6) of the judges nominated by the JSC. All the six are currently serving on the bench,” said Kuto.
He said that continued delay to appoint the persons recommended for appointment as judges of the respectful courts was and still remains a violation of Articles 2(1), 3(1), 10, 73(1)(a), 131(2)(a), 166(1), 172(1) and 249(2) of the Constitution.