SUITABILITY QUERIES

Uhuru dents judges' careers with nomination rejection

President's refusal to appoint the six could see litigants expressing no confidence in cases pending before them

In Summary
  • Last week, the president declined to gazzete the six alongside 34 others on allegations that they had unspecified integrity issues.
  • It remains unclear whether Uhuru will petition the Judicial Service Commission  to form a tribunal to probe their conduct.
President Uhuru Kenyatta presided over the swearing-in of the 34 judges on Friday at State House, Nairobi.
President Uhuru Kenyatta presided over the swearing-in of the 34 judges on Friday at State House, Nairobi.
Image: PSCU

Tough questions have emerged on the fate of six judicial officers whom President Uhuru Kenyatta declined to appoint last week.

High Court judges Joel Ngugi, George Odunga, Weldon Korir and Aggrey Muchelule as well as chief magistrate Evans Makori and High Court Registrar Judith Omange now walk with clouds of uncertainty hanging over their shoulders as the President keeps his cards under the table.

Last week, the Uhuru declined to gazzete names of the six alongside 34 others, saying their were issues on their suitability.

Their rejection puts their integrity into question and is likely to bring them into disrepute.

Yesterday, the Star established that Justices Ngugi, Korir, Odunga and Muchelelule were still sitting in court even as all these is going on. Makori and Omange were also still carrying out their duties.

It remains unclear whether Uhuru will petition the Judicial Service Commission to form a tribunal to probe their conduct.

Of interest is whether the Head of State will appear in person before JSC or task NIS director General Maj Gen Phillip Kameru to testify before the commission. 

Lawyers argue that if indeed Uhuru had adverse reports against the six, he should have formally filed a complaint against them at JSC for a tribunal to be formed to investigate them.

If the President formally files complaints then careers of the six might be on the line depending on the nature of evidence.

However, legal experts and human rights activists have described the President's action career-threatening, saying his move is likely to dent the careers and erode public confidence in the judges.

They said Uhuru’s refusal to appoint the six could see litigants expressing no confidence in the cases pending before them.

Lawyer Shadrack Wambui says the rejection of the six has dented their careers.

Wambui said judicial officers thrive on perception and must be a Caesar’s wife thus be free from all speculation about their integrity.

“Everyone of us in the legal profession has a reason to worry unless we get the evidence so that we can be on the same page with the President,” Wambui said.

Lawyer Steve Ogolla said if there is a formal complaint, then a disciplinary process can be commenced against the judges.

“The President's intel can be forwarded to the JSC through the Attorney General then the JSC will consider it on merit and then if its deserving they will be fired,” Ogolla said.

However, he noted the process of removing a judge is more complex than that of removing a magistrate but both can only be removed after due process has been followed.

According to lawyer Danstan Omari, the President’s actions threaten the careers of the six especially the two magistrates who do not enjoy security of tenure.

“The President’s assertion referring back the names to JSC has an implication, as an institution of disciplinary process, the four judges have under Article 168 of the Constitution a process of removal from the office,” he said.

“The two magistrates do not have security of tenure as the judges. Most likely they are going to be interdicted and dismissed,” Omari said.

Omari who represents the six judges said he is in consultation with the Kenya Magistrates and Judges Association on what legal action to be taken to defend members of the association.

For a judge, once a complaint is made, the law says JSC will see if its merited then they will write to the judge to respond. Meantime, the judge will continue sitting and working as usual.

Once the judge responds to the complaint, the JSC makes a decision if they are satisfied with the response, the issue ends there but if not they forward the name to the President to form a tribunal to investigate the person.

“A judge is only suspended when a tribunal sits to hear the matter but before then he or she will continue to dispense justice,” Ogolla says.

“A magistrate does not enjoy the security of tenure in addition the process of removal of the magistrate is not a constitutional process, its an administrative process that is undertaken by the CJ as the chairperson of the JSC,” added Wambui.

Lawyer Georgiadis Majimbo said the cherry picking appointment that has received wide condemnation among members of the public “is unconstitutional and unfortunate.”

In a phone interview, the constitutional lawyer said some names that were not in the initial list of Uhuru’s blacklisted judges were added, a clear demonstration he was revisiting Judiciary after the BBI case.

“Besides all the disappointments we have seen across social media, the move equally erodes Kenyans confidence in the Judiciary. Uhuru wants to paint the six judges as persons of questionable integrity yet in true sense it is his personal vendetta,” Majimbo said.

He added, “We all know that Odunga was not part of the initial list sent to JSC with rejected names but he has been added because of his firm stand on the Executive's excesses.”

Suba Churchill, the Presiding Convener of civil society reference group said the only way the six affected judicial officers can clear their names, is for the President to present the adverse report before JSC then the commission can recommend investigations by a tribunal.

“It is not only unconstitutional but is also illogical and unhelpful to the affected judicial officers, as leaves the six individuals earmarked for appointment in a situation whereby they stand accused and condemned without any regards to their rights to natural justice and fair hearing,” he said.

Churchill accused Uhuru of being “the judge, jury, and executioner in its own cause” saying the President violated the procedure on appointment of judges and the rights of the six.

Very little is known about the two magistrates who have now been thrown into the limelight by their rejection alongside the four judges.

Makori has dealt with so many terrorism cases while in Mombasa including the Kikambala case.

He was also the magistrate who jailed Briton Jermaine Grant after he convicted him on terrorism related charges.

Magistrate Omange is currently serving as the registrar of the Milimani High Court in Nairobi.

 

-Edited by SKanyara