It has been four months since the Judicial Service Commission (JSC) nominated 41 individuals for appointment as judges. Curiously, President Uhuru Kenyatta went quiet after the names were forwarded to him, prompting lawyer Adrian Kimotho to sue to compel the Head of State to make the appointments. President Uhuru Kenyatta has defended his decision not to gazette all the 41 judges, citing “adverse reports” on some of them. The President argues it would be irresponsible on his part to appoint the judges who enjoy security of tenure given the integrity concerns he is privy to and reveals he will ask relevant authorities to take “legal and administrative” action.
The derailment in the appointment does not augur well for dispensation of justice with already stretched judicial resources — the institution is the biggest casualty of a directive by Treasury Cabinet Secretary Ukur Yatan, who ordered that all government ministries, departments and agencies cut their spending by half, with the extra funds earmarked for injection into the President’s Big Four Agenda.
We thought this would never recur after initial attempts by State House to control the appointment of judges that was declared unconstitutional by the High Court, the impasse in the nomination of Justice Mohammed Warsame as the Appeal Court’s representative in the JSC, as well as the slashing of the Judiciary’s budget consecutively since 2017.
In ‘Olmstead et al v United States’, the court noted that the existence of government is jeopardised if its organs fail to observe their functions and mandates scrupulously. The judiciary in Kenya has been the potent and omnipotent teacher, which has taught the government by example. And now the executive seems hell-bent on breaking the law to ‘teach the judiciary a lesson’. The executive seems stuck in the revolving doors of impunity largely because of the intellectual dullness and arrogance afflicting the Presidency. With a president keen on subjugating the judiciary one cannot help marvelling at our leadership’s inverted sense of priorities in an already failing economy.
Too much leeway
Clark Neilly prompts us to “imagine wielding omnipotent power over nature but possessing poor understanding of how it actually works…” No one exemplifies this more than Kenyatta. With all powers vested in him to transform this country into a bastion of democracy and independence, he has instead chosen to walk the narrow and ignorant path of strangling the judiciary.
The President is treading a dangerous path; he needs to stop. He should not cloud his judgment with his open dislike for the courts.
President Kenyatta promised to revisit after the Supreme court nullified his election in 2017 and he seems right on course. In the unending war for submission and dominance by a cartel of State House old dogs bent on taking advantage of a muzzled opposition to seize control once and for all and avoid the embarrassment of the yesteryears, the last standing bastion of judicial independence in a country drunk with impunity to comatose is ultimately paying the ultimate price.
With the Judicial Service Commission (JSC) beaten into submission with the introduction of pro-government honchos now controlling majority of the JSC, the Judiciary has been left naked. The feeble and rather “useless” Law Society of Kenya, commandeered by a rudderless and spineless Allan Gichuhi, does not inspire any hope on a favourable resolution of the impasse. Gichuhi, just like Njeru Macharia, is state apologist: both were ‘helped’ to their positions for their neutrality and lacklustre approach to such arising matters. Previous LSK heads would have immediately taken the President head-on.
It is about time that the President understood that he does not have mandate to review names nominated by the JSC and has no option but to appoint the names, and file a complaint before the Judicial Service Commission if he has reservations. That the President is casting aspersions on all the 41 nominees is also a grave attempt at cheapening independence of the Judiciary and integrity of the judges. This is an extremely dangerous path the President is treading, which should be halted immediately lest it gets momentum going forward. He should not cloud his judgment with his open dislike for the leadership of this crucial institution.
Even as we castigate the President’s decision, it should not be lost that his concerns, although suspect, raise significant questions. There should clearer and closer consultations between state agencies and the JSC so that a deterioration of the current crisis is averted.