By Emeka-Mayaka Gekara
The Appeal Court’s Justice Mohammed Warsame’s re-appointment to the Judicial Service Commission remains in limbo, nine months after he was elected.
And while four others – Attorney General Kihara Kariuki, Prof Olive Mugenda, Patrick Gichohi and Felix Kosgey – were sworn-in in November, Justice Warsame could not take office because President Uhuru Kenyatta is yet to gazette his name despite a judgment by the High Court endorsing the manner of his appointment.
The swearing-in of the four resolved a quorum hitch that had engulfed the Commission following the departure of Winnie Guchu, Margaret Kobia and Kipng’etich arap Korir. The other JSC commissioners are Chief Justice David Maraga, his deputy Philomena Mwilu, Justice Aggrey Muchelule (High Court), Emily Ominde (Magistracy), and Law Society of Kenya representatives Mercy Deche and Prof Tom Ojienda.
After Warsame was elected in March, in an unprecedented move, members of Parliament, acting for powerful forces in the Executive who were uncomfortable with Warsame’s election, demanded that the judge be vetted by the National Assembly before he could assume his position at the commission. But, Justice Chacha Mwita, ruling on a petition by the Law Society of Kenya, overruled the National Assembly.
At the heart of the judgment was the argument that Parliament has no authority to vet nominees who have been elected by their colleagues – the logic here being that the election is in itself a form of vetting, and that such a move would be an encroachment on the independence of the Judiciary.
A JSC insider who spoke to the Nairobi Law Monthly in confidence attributed Warsame’s tribulations to an overzealous Executive keen on exerting influence on judicial decisions.
A well-respected judge, Warsame is perceived to be “too independent minded” to act at the behest of the Presidency, where it has interest in certain matters, especially in the appointment of judges, or where the Executive may wish to use JSC to subjugate individuals.
“Warsame is too bold, too unfettered to be a part of any hatchet job. His absence technically gives the Executive a near majority in the JSC. It is a situation it would like to extend as long as it possibly can,” he said.
“With the AG, Prof Mugenda, Koskei, Gichohi in the President’s corner the Executive needs just one more person to control the JSC,” argues the lawyer.
As Senior Counsel Ahmednasir Abdullahi once explained, the nerve centre of the Judiciary is the JSC, not the CJ or individual judges. Government mandarins are fully aware of this and that is where they engage in dirty wars to wrestle judicial independence from the institution’s grip.
Meanwhile, Ms Deche, the LSK representative, is understood to be lobbying Kihara and the new commissioners to use their political connections to ensure Warsame is gazetted.
“Our appeal to you is to help us have Justice Warsame gazetted…we believe he will play a big a role once he joins the commission,” she said during her swearing-in.