High Court repeals law allowing Uhuru to appoint CJ, Deputy CJ

The High Court has declared the amendment giving the President powers to appoint the Chief Justice and Deputy Chief Justice unconstitutional.

In a ruling made by a five-Judge bench on Thursday, the court faulted the system to have names of three appointees in each of the positions forwarded to the president for final selection, saying it interferes with judicial independence and the discretion given to the Judicial Service Commission (JSC) to name the CJ and deputy CJ.

The court further ruled that there had been no public participation in the amendment of the JSC Act 2011 thus may not have reflected the will of the people.

The case filed by the Law Society of Kenya, sought to challenge the amendment made on Section 30 (3) giving the president power to appoint the two Judicial bosses.

The court heard that the amendment violated the spirit of Article 166 of the Constitution and by sending three names to the President; JSC transferred their power to appoint the CJ and DCJ to the Head of State.

LSK claimed that the new process was prone to manipulation, tribalism and favouritism which could be detrimental to the country’s judicial operations.

The opposition coalition, CORD, had also raised issues with the amendment saying it was a mere plot to give President Uhuru Kenyatta control over the Supreme Court, which is tasked with making rulings on election petitions.

The law suffered a blow early this year after High Court Judge Isaac Lenaola suspended it pending determination of the suit.

In the ruling made on January 22nd, 2016, Justice Lenaola said further barred JSC from commencing the recruitment of CJ and DCJ until the case is heard and determined.

The ruling may end a protracted battle between the executive and JSC over who should have the final say in picking the CJ and the DCJ.

Both CJ Willy Mutunga and his deputy Kalpana Rawal are supposed to retire this year, though the latter is in court to contest her retirement age.

There is uncertainty on whether the judges should retire at the age of 70 or 74 years.

While JSC the DCJ and another Supreme Court Judge Philip Tunoi to retire at 70 according to the new Constitution, the judges have insisted on staying on until they are 74, in accordance with Section 31 of the Sixth Schedule.

The section states: “Unless this schedule provides otherwise, a person who immediately before the effective date, held or was acting in an office established by the former Constitution shall on the effective date continue to hold or act in that office under this Constitution for the unexpired period, if any, of the term of the person.”

@benjaminwafula