High Court bars Parliament from vetting Judge Mohammed Warsame

The High Court on Monday temporarily barred Parliament from vetting or summoning Justice Mohammed Warsame as a member of the Judicial Service Commission pending hearing and determination
of a case filed by Law Society of Kenya.

Judge Roselyne Aburili further suspended the notice issued by Parliament inviting members of the public to submit memoranda concerning the vetting of Justice Warsame.

The court similarly directed the petitioners to serve the respondents with the court papers and appear on April 4 for further directions

Last Friday, LSK filed a case at High Court seeking conservatory orders prohibiting the lawmakers from summoning or vetting Justice Warsame as a member of the JSC,  saying that it was unconstitutional and invalid.

LSK argues that Justice Warsame automatically became a member of the Judicial Service Commission by operation of Article 171(2)(c) upon his election by the court of appeal judges.

“Mohammed Warsame became a commissioner of the JSC by operation of Article 171(2)(c) and no person or body can purport to effect the membership in the JSC through a process that is outside Article 171 (2)(c),” reads the documents filed in court

LSK argues that by vetting Warsame the National Assembly will be acting outside the Constitution and without legal authority.

Similarly, LSK through lawyer Lempaa Suyianka claims that once the vetting is conducted, it cannot be undone and would be a permanent blot on the constitution.

“There’s no prejudice to be borne by the National Assembly if the vetting is delayed through a conservatory order so as to preserve the status quo in the short period it takes to hear and determine the petition,” says Suyianka

According to the petition, the procedure adopted by the National Assembly is unconstitutional of section 15(2) of the JSC act.

On March 9, Pusine Justice Warsame was elected by the judges of the court of appeal as a member of the judicial Service Commission.

“However the president has purported to nominate Warsame as a member of the Judicial Service Commission,’’ reads the court documents.

LSK says it is seeking to invalidate as unconstitutional the purported appointment of Warsame by the president as well as his planned vetting by the National Assembly.