Law Society of Kenya vs Attorney General and National Assembly (2016)

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LAW SOCIETY OF KENYA VS ATTORNEY GENERAL AND NATIONAL ASSEMBLY (2016)The petitioner sought to challenge the inordinate delay of the president of republic of Kenya to gazette and appoint persons who had been recommended as judges of the high court by the judicial service commission (JSC).

JSC had forwarded the names of 25 persons for the said position out of which 11 had been formally appointed, sworn in and gazetted. It was disclosed that the appointment of the remaining persons were still being processed and were subject to approval.

The petitioner had no role in processing ,approving or disapproving the appointment of judges. The role was exclusively for the JSC and once the JSC submits the names to the president then his constitutional duty was to appoint,swear-in and gazette those recommended.

The petitioner contended that in unreasonably delaying the appointment of judges and refusing, failing and neglecting to appoint the other judges, the president violated articles 1,2,3,27,48,50,166,171 and 172 of the constitution.

He also negated his executive authority under article 129 and his oath of office in terms of articles 74,141(3), 148(5), 154(4) of the constitution.

Issues

  • What was the function and role of the president in the appointment of judges of the High Court vis-à-vis recommendations of the judicial service commission for appointments in the exercise of its functions under Article 172 of constitution?
  • Whether the selective appointment of some of the nominees for the position of judge of High Court by the president was discriminatory
  • Whether there was any delay in appointing, swearing-in and gazetting the nominees as judges of the High court.

Relevant provisions of the law Constitution of Kenya, 2010

  • Article 166(1)(b) –the president shall appoint all judges, in accordance with the recommendation of Judicial Service Commission
  • Article 172(1)(a)-the Judicial Service Commission shall promote and facilitate the independence and accountability of the Judiciary and efficient, effective and transparent administration of justice shall be recommended to the president persons for the appointment as judges
  • Judicial Service Act no 1 2011-first schedule, paragraph 16-The commission shall not reconsider its nominees after the names are submitted except in the case of death, incapacity or withdrawal of a nominee.

Declarations

  1. Declaration that section 166(1) of the constitution doesn’t require the JSC to submit to the president  the 3 names for appointment of position of Chief Justice and Deputy Chief Justice
  2. Declaration that provision of article 166(1)a the judicial service commission is mandated to appoint one name of the position of chief justice and deputy chief justice
  3. Declaration that amendment made on section 30 (3)of judicial service act 2011 by statute was inconsistent
  4. Declaration  that attempt of national assembly to limit the constitution  mandate of the jsc by requiring it to forward three names to president is a violation of the constitutional and independence of judiciary.
  5. Declaration amendment on section 30(3) of the JSC Act 2011 by statute law were done without meaningful and qualitative public participation.
  6. Declaration that section 30(3) of Judicial Service Act 2011 as amended by statute law statute  act 2015 is unconstitutional on  account  of violation of article 188 of constitution of Kenya
  7. Declaration that the entire amendments contained in statute  law act 2015 are unconstitutional  on account of violations of article 109-113 of the constitution of Kenya

Holding

The system of appointment of judges was informed by the need to infuse a sense of integrity in the process that would ensure independence of the Judiciary and judicial officers.

Independence was a culmination of several factors.It is presumed that there is appropriate appointment process,subject to the strict procedures for the removal of judges,a fixed term in the position and a guarantee against external  pressures

The appointment should be transparent and accountable ,doubts can be cast as to what factors dictated such appointment

The court is vested with power to interpret the constitution and to safeguard, protect and promote its provisions as provided under Article 165(3) of the constitution. It has a duty and obligation to intervene in actions of the other arms of government and state organs where it was alleged

The doctrine of separation of powers did not inhibit the High court’s jurisdiction to address the petitioner’s grievances as long as they stemmed out of alleged violations of the constitution.

It was clear sufficient background check was done for applicants even before the interview was conducted and JSC invited members of the public with relevant information on the said persons to present

Role of president was limited in the appointment, swearing in the gazettement of Judges since the judicial service act and regulations did not  provide for the timelines within which the president was to do so.