• The Constitution does not provide that JSC shall appoint judges.
• It gives the JSC mandate and powers to merely recommend suitable and competent persons for appointment.
The drama unfolding between the Judiciary and the Executive over the appointment of 41 judges and disobedience of court orders is unnecessary.
The Judicial Service Commission, among other functions, recommends to the President persons the appointment of judges.
The Constitution does not provide that the JSC shall appoint judges. It gives the JSC the mandate and powers to merely recommend suitable and competent persons for appointment. The JSC is not the appointing authority, the President is.
[The Judiciary said the President delayed apointments for six months, leaving the courts seriousy undertaffed. The President said some judges had "integrity issues" but did not explain and justify his reasos for holding up the whole list. The case is now inthe High Court.]
Law Society of Kenya President Nelson Havi and others are incorrect.
No LSK Council resolution or position paper exists on this matter. I would have expected the LSK leadership to consult seriously with its membership and adopt a professional legal position before going public.
The falling out between the Judiciary and the Executive demonstrates an increasingly failure of leadership in these offices.
The Constitution does not state that the President must appoint all or any number of judges recommended by the JSC, nor does it provide any timelines for appointment.
Nothing in law bids the President to appoint recommended persons as judges or any number of them within any timelines. It is thus unconstitutional for the court to purport to re-write the Constitution to impose timelines or impose other conditions on the President.
Article 166(b) of the Constitution states President shall appoint “all other judges in accordance with the JSC”. If the Constitution intended to tie the hands of the President, a nothing would have been easier than for the drafters of the Constitution.
For instance, article 166 (a) could have been reworded as follows: “the president shall appoint all the judges recommended by the JSC or the President shall appoint the Judges recommended by the JSC” … within …….. days or months."
The President is not a rubber stamp for the Judicial Service Commission.
The law does not bind the President to accept the recommendations of the JSC on appointment of judges. A recommendation is widely understood to mean a formal letter or statement that somebody would be suitable for a particular job.
In the Council of Governors’ (CoG) -vs- Commission on Revenue allocation (CRA) advisory opinion, the Supreme Court (DK Maraga CJ & P), MK Ibrahim, SC Wanjala, NS Ndungu and I Lenaola SCJJ held the term recommendation as used in the Constitution should first and foremost be given its literal and natural meaning.
A recommendation was a suggestion or a proposal for a certain cause of action that was not necessarily binding.
Recommendations are not directives, commands, or instructions to be complied with by the President.
It is logical and reasonable to expect the appointing authority to consider the recommendations, accept or reject them with or without reasons.
It is difficult to see how the President is expected to exercise and meet his leadership responsibilities as a state officer if all he does in the appointment is to receive the list and merely endorse or sign and stamp.
The JSC is an independent constitutional commission just like the Commission on Revenue Allocation. The Supreme Court, headed by Chief Justice David Maraga ruled recently that recommendations of the CRA are not binding on Parliament or the Executive.
The High Court orders declaring the refusal and delay by the President to make the appointment a violation of the Constitution is thus erroneous and contradicts the legal position pronounced by the Supreme Court in the CRA advisory opinion.
The Judiciary is part of the government, though independent — the three arms of government are inter-depedent in the public interest.
The public pronouncements by the CJ condemning and convicting the President of contempt of court when no contempt hearing or trial has been taken in a court simply will not do.
Mugwuku is an advocate of the High Court and former defence counsel UN – ICTR, Arusha, Tanzania