• The memorandum attributed to LSK does not represent the official position of the society as several members listed confirmed they never participated in its preparation.
• Nelson Havi's remarks came days after CJ David Maraga rubbished the proposal by Speaker Justin Muturi saying it is aimed at capturing the Judiciary.
The Law Society of Kenya has disowned a presentation it allegedly made to Building Bridges Initiative taskforce proposing changes to be made to the Judicial Service Commission.
In a letter to the taskforce Wednesday, LSK president Nelson Havi urged that the memorandum in question be discarded and not registered as views of members of the society because the LSK supports the independence of the Judiciary.
He clarified that in its memorandum, the society made its report on nine core challenges namely: lack of national ethos, responsibilities and rights of citizenship, ethnic antagonism, competition, divisive elections, inclusivity, shared prosperity, corruption, devolution and safety and security.
In the disowned memorandum LSK allegedly recommended restructuring of JSC through amendment of law to reconstitute its membership.
The proposed membership of JSC would have the Chief Justice as chairperson, Attorney-General, one male, one female judge, one male, one female LSK representative, ODPP and two members of public to be chosen through a public process.
The document, however, gives no justification for the proposed reconstitution of JSC neither does it explain the manner of selection of the two judges, two LSK representatives and two members of public, Havi said.
“The memorandum attributed to LSK does not represent the official position of the society, several members of society listed in the said memorandum including doyen of constitutional reform Dr Gibson Kamau Kuria have confirmed that whereas their names appear in the memorandum they never participated in its preparation,” Havi said.
He noted that the council members who allegedly participated in the making of the said memorandum are of the view that the society must take a stand that bolsters the independence of the Judiciary and a JSC comprised of members competent and suitable to undertake its functions.
Havi said the position of LSK is that the structure of the Judiciary and JSC should not be altered in the manner proposed to the BBI.
“Attempts by the Executive of any country to control the Judiciary are not novel or unique to Kenya. They are as old as democracy itself.”
The LSK president quoted Jacques Montesquieu saying: “There is no liberty, if the power to judge is not separated from the legislative and executive powers. Were the judicial power joined to the legislative, the life and liberty of citizens would be subjected to arbitrary power. For the judge would then be the legislator. Were the judicial power joined to the executive, the judge would acquire enough strength to become an oppressor.”
He further urged the BBI team not to take into consideration recommendations made by National Assembly Speaker Justin Muturi and AIPHR (a community- based organisation) on the Judiciary and JSC not to be taken into consideration.
As such, the memorandum in question should not be registered as LSK's.
Havi's remarks came days after CJ David Maraga rubbished the proposal by Muturi saying it is aimed at capturing the Judiciary and eroding its independence.
- mwaniki fm