- A Chief Justice should serve a single 10-year term but mandatorily retires on attaining the age of 70 years, hence his exit dates are assumed as known.
Image: CHARLENE MALWA
A Bill proposing the hiring of a Chief Justice six months before the incumbent leaves office has been dropped.
The Justice and Legal Affairs Committee of the National Assembly on Wednesday resolved to withdraw the Bill, citing constitutionality concerns.
JLAC vice chairman Tom Kajwang’ has sought Speaker Justin Muturi’s approval for the Judicial Service Commission (Amendment) Bill, 2020, to be expunged.
He said the reasoning of the committee is that the High Court expressed itself and struck down the section of law.
This was in a 2016 case pitting the Law Society of Kenya against the Attorney General challenging the amendment that was executed in an omnibus Bill.
LSK successfully got orders expunging the law which sought to compel JSC to send three names of CJ candidates to the President for the subsequent appointment.
“When the court has expressed itself exercising correct jurisdiction, that section of the law is not there for amendment…in short, there is no section of the law to amend,” Kajwang’ said.
He added that a bill that seeks to amend what is not there is illegal; hence any transaction on it would be an effort in vain.
“In view of the circumstances and with the concurrence of the members of the committee, I wish to apply to withdraw the Bill,” the MP said.
The Bill sponsored by Kangema MP Muturi Kigano (JLAC chairman) sought to compel the JSC to begin recruitment six months to a Chief Justice’s exit.
A Chief Justice should serve a single 10-year term but mandatorily retires on attaining the age of 70 years, hence his exit dates are assumed as known.
The National Assembly sought to introduce a regime where Chief Justices are replaced before they leave office, for a proper handing over.
This was to cure the mischief in the law spelling the transition of justices of the Supreme Court.
“The commission (JSC) shall commence the process of filling a vacancy in the office of the Chief Justice at least six months before the retirement date or expiry of the term of Chief Justice under Article 167 of the Constitution,” the Bill read.
JLAC, in withdrawing the Bill, said the Bill seeks to amend Section 30 (3) of the JSC Act, which the courts had declared unconstitutional.
"The provisions of this section shall apply to the appointment of the Chief Justice and deputy Chief Justice except that in such case, a person shall not be appointed without the necessary approval by the National Assembly," the section reads.
Justices Richard Mwongo, Weldon Korir, Mumbi Ngugi, George Odunga, and Louis Onguto (deceased) agreed with the LSK in the matter.
They held that it was improper for the amendments affecting the manner of appointment of the Chief Justice and the Deputy Chief Justice, being the topmost positions in the Judiciary, to be effected in Statute Law Miscellaneous Amendment legislation.
“To the extent that the amendments to section 30(3) of the Judicial Service Act compelled the Judicial Service Commission to submit three names to the President for appointment of the Chief Justice and the Deputy Chief Justice respectively, the said amendments violated the letter and the spirit of Article 166(1) of the Constitution,” the judges said.
-Edited by SKanyara