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Noah Cheploen @cheploennoah

Top lawyers have asked President Uhuru Kenyatta to end the standoff between the Executive and the Judiciary by appointing the 41 judges nominated by the Judicial Service Commission (JSC). 

The lawyers  blamed Attorney General Paul Kihara for the stalemate, accusing him of misadvising the President.

They pointed out that Kihara is a member of the JSC that recommended the nominees for appointment. But after the appointment Kihara moved to court seeking to block the approval of the nominees over what he said were integrity issues.

The Executive and the Judiciary have been embroiled in a standoff over the President’s delay to appoint the judges. 

Yesterday, lawyers faulted Kihara’s move, saying as a member of the JSC, he should have raised integrity issues apparently highlighted by State agencies such as the National Intelligence Service (NIS) on the nominees at the interview stage.

In an online conference, constitution law expert Nzamba Kitonga, former Justice minister Martha Karua and Law Society of Kenya (LSK) president Nelson Havi, were categorical that the delay to appoint the judges had frustrated hearing of cases.

“The AG sits in that JSC panel and he is part of the decision-making process so after making the decision he goes out to misadvise the President…” said Kitonga, a senior counsel.

The lawyer, who chaired the team that drafted the 2010 Constitution, proposed the restructuring of the JSC and removal of the AG from the commission. 

Last week, an agitated Chief Justice David Maraga laid bare his frustrations over the President’s refusal to appoint the judges, saying the move had led to a backlog of cases.

He claimed  that efforts to secure an appointment with the Head of State had been fruitless.

Maraga also claimed that the Executive was undermining the justice system by persistently disobeying court orders and other decrees noting that this does not augur well for a country that is governed by the rule of law.

Prejudicial statements

But AG Kariuki lashed out at Maraga for issuing public statements to pile pressure on the President instead of using official communication channels.

He claimed that the CJ was making the argument personal yet it is not. Kariuki further faulted Maraga for allegedly making preemptive and prejudicial statements about matters that are in court.

He said the CJ was sending a coded message to other judicial officers as the relationship between the two arms of government hit a new low.

“For the second time in less than a week, the Honourable Chief Justice has resorted to issuing a public statement casting aspersions on the legal propriety of certain actions by the President,” the AG said.

“These public attacks which have taken a decidedly personal slant are not only a breach of established norms of government but are also the more puzzling given the direct lines of communication that exist between the Chief Justice and the President.”

Yesterday’s online conference, whose theme was Judicial Independence and Accountability, was hosted by the International Commission of Jurists (ICJ) with its chairman Kelvin Mogeni being one of the panelists.

Kitonga said the AG had access to information on individual candidates from relevant State agencies such as NIS,  Kenya Revenue Authority and the Ethics and Anti-Corruption Commission, thus should have raised arising issues during the interviews. 

Kitonga said there was need to reconstitute the JSC, saying it had lost confidence in the eyes of the public. According to him, JSC was not transparent enough. He, however, lobbied for implementation of the Judiciary Fund as prescribed by the Constitution.

The lawyer urged President Kenyatta to resolve the current standoff as a matter of priority, saying it might affect his legacy if he allows it to drag on. 

“He shouldn’t go down in history as the President who disabled the justice system,” Kitonga said.

Karua criticised the President and the AG for allegedly holding the country to ransom over the judges appointment, which has been pending since July 2018.

She said the JSC Act allows the body to re-examine its list when presented with credible information on nominees, but added that the process should be candid to avoid suspicions.

“I am of the school of thought that both the President and JSC must uphold the Constitution,” she said, adding: “If you stop the process and you’re not handing over the information you have,  then we are able to read your motive.”

However, she differed with Kitonga, saying there was no need to restructure the JSC noting that the problem is not the laws but people failing to obey the rules. 

“It is like throwing out the baby and the bath water; we should find another way of solving the problem without causing unnecessary divisions among the three arms of government,” she said.

She regretted that the tensions between the Executive and the Judiciary had gone personal.

 “I don’t think we can have a healthy debate when we have such level of tension where Judiciary is being demonised through social media,” she added.

At the same time, she criticised the Judiciary for lavish spending and failing to stamp its authority by ensuring the law is followed at all times and by all. 

Havi urged LSK members to turn up in large numbers on July 23 to expel AG Kariuki and Solicitor General Kennedy Ogeto for defying court orders and allegedly misadvising the President on critical matters of governance.

“What we are doing is unprecedented but not new… we want to send a strong message that it cannot be business as usual when State officers defy court orders. It is unfortunate the President has been embarrassed by the AG,”he said.