• JSC had opposed the law that required the Judiciary to nominate two people for appointment as members of SRC.
• SRC Act providing for the appointment of two people of opposite gender ruled unconstitutional.
Image: PSCU
President Uhuru Kenyatta has seven days to appoint Judicial Service Commission nominee Jacqueline Manani a member of the Salaries and Remuneration Commission.
If that is not done, Manani will automatically be deemed to be duly appointed and Chief Justice David Maraga compelled to swear her in as a member of the commission.
The decision brings to an end the deadlock between JSC and SRC over the appointment of Manani.
JSC had opposed the law that required the Judiciary to nominate two people for appointment to be members of SRC.
This is after the head of public service Joseph Kinyua rejected Manani’s name and directed JSC to add another name of a different gender.
However, Justice James Makau in a judgment delivered on Thursday faulted the SRC Act that provides that a nominating body shall forward the names of two qualified persons who shall be of the opposite gender to the Cabinet Secretary for onward transmission to the President, contrary to the Constitution.
“A declaration is hereby issued that provides that the President shall nominate the members from each category and forward the names to the National Assembly for approval. The speaker of the National Assembly shall forward the names of the nominees to the President for appointment contrary to the Constitution which does not require nomination by the President,” the court ruled.
He further ruled that the SRC Act is unconstitutional and therefore null.
The Act states that the President shall submit fresh nomination where the National Assembly rejects any nomination, arguing that this section is contrary to the Constitution which does not require approval by the National Assembly.
In the case, JSC had argued that the amendment to the SRC Act that introduced a provision where a nominating body has to forward two names to the President, is unconstitutional.
They moved to court to challenge the decision by the state to reject their nominee.
In a letter to Maraga, who is the chair of JSC, Kinyua said nominating bodies including JSC are bound to obey the law as it stands.
They rejected the name and insisted they could not progress with the appointment unless the second nominee of the opposite gender is given to them.
JSC had argued that the nominees are supposed to be appointed by the President once received and the Constitution does not give approval power to Parliament as they had alleged.