Emeka-Mayaka Gekara

The promotion of two judges from the Court of Appeal has deepened a staffing crisis in the Judiciary, effectively presenting new Chief Justice Martha Koome with tough choices as she seeks to persuade President Uhuru Kenyatta to appoint more judicial officers.

Court had 15 judges and the appointment of Koome and Justice William Ouko to the Supreme Court leaves it with 13 jurists. 

According to the Constitution, the court is supposed to have a minimum of 15 and a maximum of 30 judges.

Its numbers could be further reduced with the impending retirement of Lady Justice Roselyn Nambuye early next year.

Matters are complicated by the fact that the President is yet to swear in 41 judges appointed by the Judicial Service Commission (JSC) in May 2019, 11 of them earmarked for the Appeal Court. 

The President has refused to appoint the judges, citing integrity questions on some of them despite two court orders requiring him to do so, a matter that became the subject of a major standoff between the Head of State and former Chief Justice David Maraga, who accused him of violating the Constitution.

During interviews for the CJ post, Justice Koome told the JSC she will give priority to the hiring and appointment of judges, including the 41.

Points out

“The best thing to do is to appoint additional judges and magistrates, including the 41 judges that is currently pending,” Justice Koome said.

In the same interviews, Justice Ouko, who was the President of the Court of Appeal, pointed out that with its current numbers, the institution “was technically crippled and highly stretched”.  

Senior lawyers who spoke to People Daily pointed out a dire crisis in the Court of Appeal, noting that Chief Justice Koome had the onerous task and delicate responsibility of resolving the standoff on appointment of the 41 judges as she defends independence of the Judiciary.  

While some suggested that Koome could pursue a diplomatic approach, others maintained that she should let the matter be argued in court, insisting that she cannot be seen to interfere with matters that are under active litigation.

“We are in an extremely difficult situation and the solution is not easy to find. There is reluctance by the President to swear in the 41 judges.

This presents a major crisis and it will now require the persuasive talents of the new Chief Justice to have them sworn in,” said Fred Ojiambo, chairman of the Senior Counsel Bar.

Ojiambo suggested the JSC could initiate new recruitment of judges to circumvent the stalemate while there are also suggestions that CJ Koome could negotiate for partial appointment of the judges.

“We are in a stalemate and as it persists we will be in more trouble. New recruitment is a possibility that can be considered for public interest.

There is enough talent out there but I do not  know whether people will be willing to bring themselves forward.

A number of people have reservations about the manner in which interviews for judges are conducted. Some think the process is degrading,” said Ojiambo.

Another senior counsel who sought anonymity for fear of antagonising colleagues blamed what he called“Maraga and Law Society of Kenya President Nelson Havi’s confrontational approach” for the stalemate.

“We need a different discussion. The Maraga approach of addressing the President from the steps of the Supreme Court building did not work.

We need a person who will navigate the matter diplomatically with wisdom and dexterity in order to yield results instead of engaging in a shouting match. 

The approach by LSK was to secure a victory and humiliate the President and he refused to listen,” said the senior lawyer.

It is worth noting that the Court of Appeal is set to hear and determine petitions against the High Court order declaring the Constitutional Amendment Bill (2020), “unconstitutional, null and void”.

President Uhuru and opposition chief Raila Odinga have indicated that they will appeal the decision that dealt a major blow to the Building Bridges Initiative (BBI).

But in an interview with People Daily yesterday, Havi said the President had no option but to obey court orders directing him to appoint the judges with a declaration that he had no mandate to veto the decision of the JSC.

“President Uhuru’s actions may be translated as contempt of court but they are actually premeditated to cripple the Court of Appeal.

He desires a composition of individuals who will continue to overturn High Court decisions,” said Havi.

Current number

“The current number of judges is suitable for his purposes because if you have a larger pool you can apply for recusal of a judge or two from a panel but you cannot do so currently because the small number is limiting.” According to the LSK President, a seven-judge panel must hear the upcoming BBI petitions.

Besides the promotion of Koome and Ouko, it is notable that Appeal Court judge Kathurima M’Inoti is the director of the Judiciary Training Institute while Justice Mohammed Warsame is a JSC commissioner.  

Their additional responsibilities excuse them from being empanelled to hear certain cases.

Yesterday, Havi challenged Koome to fulfill her promise during the interviews that she would look for the President and ask him to appoint the judges. 

He, however, rejected the proposal for selective appointment of the judges, saying the Constitution required the President to appoint all of them and if he has any complaints, he should file a petition at the JSC for disciplinary hearing. Havi blamed the Judiciary for the stalemate on the judges.

“LSK resolved to expel Attorney General Paul Kihara and Solicitor-General Ken Ogeto for misleading the President, which should have served as a potent lesson for anyone encouraging disobedience of court orders but the two moved to the courts and a judge gave them stay orders. The Judiciary refused to help us to help them.”

The JSC nominees to the Court of Appeal include judges George Odunga, Francis Tuiyot, Joel Ngugi, Joyce Nyamweya, Hellen Amolo, Weldon Kipyegon and Msagha Mbogholi. Others are Aggrey Muchelule, Imaana Laibuta, Jessie Lessit and Mumbi Ngugi.

On the eve of his retirement, Maraga blamed Uhuru’s refusal to swear in the judges for the backlog of cases in the Judiciary.

He accused the Head of State of defying court orders that directed him to swear in the judges within 14 days.

President Uhuru, through the AG, told the courts that he had received intelligence that some of the judges had integrity issues and he was considering legal and administrative issues, which would involve reviewing JSC recommendations.

However, according to Maraga, the court in the two separate rulings quashed this on the grounds that the President had no legal jurisdiction to alter the recommendations of JSC or subject it to any review.

“The courts ruled that the President cannot change the list, review or reject the names…

Once the JSC makes recommendations the President has no other options but to formalise the appointments,” said Maraga.