The High Court Thursday declared an amendment to the Judicial Service Commission Act unconstitutional, stripping President Uhuru Kenyatta of the powers to handpick the Chief Justice and his deputy.
A five-judge Bench consisting of Justices Richard Mwongo, Joseph Onguto, George Odunga, Weldon Korir and Mumbi Ngugi ruled that the appointment of the top judge remains the sole mandate of the Judicial Service Commission (JSC).
The judges argued that the amendment granting the President powers to to select the head of the Judiciary would effectively return the country to the dark past when patronage, nepotism and corruption, determined appointment of senior public officers and contrary to the Constitution’s demand for open and accountable processes that promote good governance.
“Amendments compelling the JSC to submit three names of each position to the President violated Article 166 (i) of the Constitution.
Amendment of Statute Law to the Judicial Service Act 2011 is unconstitutional and is hereby declared null and void,” Justice Mwongo, who read the verdict, said.
Article 166 (i) of the Constitution grants the President powers to appoint the Chief Justice and Deputy Chief Justice in accordance with the recommendation of the JSC and subject to approval of the National Assembly.
The judges argued that the President could not have the opportunity to “have a second bite” as he was already represented in the JSC through the Attorney- General and two members of the public he appoints to sit on the commission.
“The selection needs to reflect all the diverse representation of the commission. The selection process is an exclusive mandate of the JSC that starts at advertising the positions to when the names are submitted to the President,” the judges ruled.
The Statute Law (Miscellaneous Amendments Act 2015), altered Section 30 of the Judicial Service Act to require that three names of each top judiciary position be forwarded by the JSC to the President.
After selecting among the nominess for both the CJ and Deputy CJ posts, the two names would then be forwarded to Parliament for vetting.
Parliament passed the controversial legislation on December 1 last year, just before the Christmas recess and Mr Kenyatta immediately assented to it.
The JSC has since 2011 held exclusive powers of recommending to the President the individual to be appointed as the head of the Judiciary.
The Law Society of Kenya (LSK) in January took the Attorney- General and the National Assembly to court over alleged violations of the Constitution with the passing of the law.
The case was initially heard by Justice Isaac Lenaola in January who temporarily stopped implementation of the new law until the petition filed by the LSK was heard and determined.
A five judge Bench was then constituted to hear the weighty constitutional matters raised in the petition.
The verdict puts Parliament on the spot for failing to follow and defend the Constitution to the letter in enacting the Statute Law.
The judges noted that while parliamentary proceedings were privileged, the court would not hesitate to intervene if it is alleged that any of the State organs violated the Constitution, which is the supreme law of the land.
“These far-reaching amendments were only introduced later on the floor of the House. The Bill amounts to the ultimate alteration of Article 166 of the Constitution through the back door,” the judges said even as they faulted the Legislature for introducing impugned amendments to the Bill on the floor of the House without taking into consideration public participation as required by law.
The judges noted that a Bill debated with public participation could only be altered on the floor of the House if the changes made took into consideration the outcome of the public participation and not introduce entirely new provisions.
“The amendments made were substantive, not minor, and set out to circumvent public participation,” the verdict read. The Attorney- General had argued that the selection of three nominees for the position of both Chief Justice and his deputy would prevent JSC from going back to the drawing board and conduct fresh interviews if the nominee was rejected by Parliament.
“If the Legislature was to hold the Judiciary at ransom then a solution can be found elsewhere rather than in the improper alteration of the Constitution,” the judges ruled.
The decision with far-reaching implications comes barely a month before the position of chief justice falls vacant with the retirement on June 16 of Willy Mutunga.