The Judicial Service Commission (JSC) has locked horns with the head of public service over the constitutionality of a law that requires the Judiciary to nominate two people for appointment to a slot at the Salaries and Remuneration Commission (SRC).
JSC says the amendment to the SRC Act that introduced a provision where a nominating body has to forward two names so the president can select one and forward to the parliament, is unconstitutional.
JSC has now sued Attorney General and the SRC after the head of public service Joseph Kinyua wrote to the Chief Justice rejecting the Judiciary nominee, Jacqueline Akinyi Okeyo Manani.
Mr Kinyua has been categorical that the case can only be processed if the Judiciary submits a second nominee in compliance with SRC Act.
But JSC in a petition filed at the High Court says the section of SRC Act that requires JSC to forward two names is contrary to the article 230 (1) (2) of the constitution which allows various bodies to nominate one person each to SRC.
“We have reviewed the contents of your letter and we note that notwithstanding the submissions of the judicial service commission on the alleged unconstitutionality of section 7(2) of the salaries and remuneration commission act , there exists no ruling or judgment issued by a court of competent jurisdiction suspending or quashing that provision of law,” reads Mr Kinyua’s letter.
The letter addressed to chief Justice David Maraga in his capacity as JSC Chair further notes that ‘nominating bodies including JSC are bound to obey the law as it stands, and he equates JSC’s move to arrogation of powers conferred on high court.
Mr Kinyua told Mr Maraga that his office is ‘unable to progress the appointment unless the second nominee of opposite gender is received.
But the JSC now wants High Court to declare that section unconstitutional and wants President Uhuru Kenyatta to be compelled to appoint her as a member of SRC.
JSC says the nominees are supposed to be appointed by president once received and the constitution do not give approval power to parliament