Former Chief Justice David Maraga has rebuked President Uhuru Kenyatta for disregarding the rule of law.
He agreed with his predecessor Willy Mutunga’s letter to the President criticising him for failing to appoint six judges.
According to Maraga, the president’s reluctance to nominate six judges without providing justification was an affront to the rule of law.
“I agree with every word in that statement, I’ve read the whole of it. When a situation get so bad, it requires that people be frank,” Maraga said in a local TV interview.
During the interview, the former CJ stated that the Head of State’s sole responsibility was to appoint judges and then discuss any issues of integrity with the JSC.
“Article 166 (1b) of the Kenyan law states that the President shall appoint all the Judges in accordance with the recommendations of the JSC subject to the approval by the National Assembly (in the case of the Chief Justice and the Deputy Chief Justice. ) ” he noted.
Mutunga wrote a hard hitting letter to Kenyatta over the six judges who were left out in the recent appointments.
In his letter, Mutunga says the president’s conduct on the issue is beneath the dignity of the high office which amounts to pettiness.
Mutunga has called on the Head of State to appoint the affected judges as recommended by the Judicial Service Commission as it was the right thing to do.
“It is urgent that the President immediately appoints the six judges, many of whom are exceptional because that’s what fairness, common decency, the rule of law and the Constitution require,” he said.
While he acknowledges that the President may have valid concern over suitability of the six judges to occupy public offices based on intelligence and information availed exclusively to him, the former CJ says that is water under the bridge given that such issues were not raised at an appropriate time.
“If the President has any adverse reports on any shortlisted candidates for judgeship, he, both in his privileged position as Head of State and as a citizen of Kenya and a member of the public, would share that report with the JSC at that stage (not later) in the recruitment process,” he stated.
The Head of State gazetted the appointment of 34 out of the 41 judges nominated by the Judicial Service Commission (JSC) to join various courts, among them the Court of Appeal, in 2018.
However, the President declined to approve the nomination of Aggrey Muchelule, George Odunga, Weldon Korir and Prof Joel Ngugi who were recommended for the Court of Appeal. The head of state also left out judges Evans Makori and Judith Omange Cheruiyot, who had been recommended for the Labour Court.
Mutunga now joins the list of legal team that have rebuked the President’s move to leave out the six judges in the appointments.