Chief Justice Martha Koome wants the Court of Appeals to find that President Uhuru Kenyatta violated the constitution by not appointing six of the 40 judges nominated by the Judicial Service Commission (JSC) three years ago.
The ECJ also wants the court to declare that the solution to the alleged violation is to remove the President from office. In an appeal against a High Court ruling which ordered Mr Kenyatta to appoint the six judges and if he fails the CJ takes over, Ms Koome has also declined to evade the President by playing his part.’ /p>< p>Instead, it has proposed a declaration that the President has violated Articles 3(1) and 166(1)(b) of the Constitution or any other ordinance that would ensure direct accountability of the President.
“It is proposed that the court make a statement that the President … violates Articles 3(1) and 166(1)(b) of the Constitution. A declaration that the appropriate remedy for violation of Articles 3(1) and 166(1)(b) of the Constitution is impeachment of the President or any other order that ensures direct accountability of the President,” she says in the Court files.
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However, even if the court of appeal finds that the President has violated the Constitution, the proposed impeachment may not go ahead because the court process will be lengthy and the President is eight weeks away from the end of his term. In addition, Parliament has since adjourned indefinitely for the August 9 general election.
The Constitution provides in Article 145 – on the impeachment of the President – that the impeachment motion be brought by a member of the National Assembly must be supported by at least one third of all members (232 MPs). CJ Koome alleges that the President violated Article 3(1), which states that “every person shall respect, uphold and defend this Constitution”.
The other provision against which breached by Mr Kenyatta is Article 166(1)(b), which states that “the President shall appoint all other judges in accordance with the recommendation of the Judicial Service Commission”.
The basis of the proposal is the ECJ Mr Kenyatta’s decision to reject the appointment of the six judges of the High Court and Court of Appeal, as recommended by the JSC.
In rejecting the recommendation for the appointment of the six candidates, the President appealed a negative National Intelligence Service (NIS) for short. He said they were depraved.
The judges at the center of the litigation are Justices George Odunga, Aggrey Muchelule, Prof Joel Ngugi and Weldon Korir, who were appointed by the JSC as Court of Appeals. The others are Chief Magistrate Evans Makori and Assistant High Court Registrar Judith Omange, who have been promoted to High Court Judges.
They were nominated by JSC in July 2019 along with 35 others, but one of them, Harrison Okeche, died during the pendency of the impasse. The JSC chair at the time was then Chief Justice David Maraga, who resigned in January 2021.
President Kenyatta nominated 34 candidates on June 4, 2021, rejecting the six over alleged integrity issues. a move that escalated the long-running legal battle between the executive branch and the judiciary.
On October 21, 2021, a panel of three judges presided over the President as he delivered a verdict on a lawsuit filed by lobby group Katiba Institute passed to appoint the six candidates within 14 days of the verdict date.
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In the orders, which have since been stayed by the Court of Appeal, the High Court had held that if 14 days had elapsed without Mr Kenyatta making the appointments, his powers / Authorization to grant has expired. The court said the six nominees would be deemed duly appointed to their proposed offices.
The Supreme Court then said that CJ Koome and the JSC are free to take any steps necessary to have the nominees sworn in to leave and assigned duties.
But the CJ, Mr. Kenyatta and Attorney General Paul Kihara Kariuki were offended by the verdict and went to the Court of Appeal with separate appeals.
In their appeal brief, filed by Attorney Charles Kanjama tells the CJ that the Supreme Court erred in directing them to assume the president’s role in appointing judges. Court filings show she also opposes the High Court’s decision to grant her power to evade President Kenyatta by appointing and swearing-in judges.
She says the High Court bench, composed of Justices George Dulu, William Musyoka and James Wakiaga, failed to recognize the constitutional values of separation of powers. “The learned judges erred in law and in fact by failing to recognize that the use of a presumption of appointment could violate the constitutional values of separation of powers and the direct accountability of every state official,” says the CJ.
You also criticizes the High Court for failing to take into account the fact that as JSC Chair she had no further mandate when she was appointed. The mandate of the CJ had legally expired after the nominees were forwarded to the President.
“The judges failed to take into account that the CJ became ‘functus officio’ as chairman of the JSC after serving to the President Persons proposed for appointment as judges under Article 172(1)(a) of the Constitution,” argues CJ Koome.