Chief Justice Dr Willy Mutunga with President Uhuru Kenyatta.
BY SAM ALFAN
The court has overturned an amendment to the judicial service commission act compelling the Judicial Service Commission to forward three names to the President for the appointment of a Chief Justice.
The five judge bench led by Principal Judge Richard Mwongo declared section 30(3) of the amended act null and void.
Chief Justice Dr Willy Mutunga is set to retire in June.
The high court ruled that the appointment of chief justice and their deputy lies squarely with the Judicial Service Commission.
Law Society of Kenya had filed the suit after parliament passed a bill giving powers to the president to choose a CJ from three nominees forwarded to him by JSC.
The court ruled that the principle of separation of powers among the three arms of Government, the executive, the legislature and the judiciary must be upheld at all times.
Parliament had amended Section 30 (3) of the Judicial Service Act 2011 vide the Statute Law (Miscellaneous Amendment) Act 2015.
The amendment deleted subsection (3) of the Act and substituted it with a new section providing that the Secretary of the Judicial Service Commission (JSC) shall forward the names of 3 qualified persons for each vacant position to the president.
LSK told the court that the matter is of great public interest and orders sought would not prejudice the Attorney General and the national Assembly.
He further said the senate was not involved when the amendment were passed by the National Assembly as per Article 118 which is a gross violation of the constitution.
“Any suggestion that independent of Judiciary is under attack is sufficient enough to give urgency to a matter of this nature” LSK said.
“The amendments are unconstitutional and cannot be allowed to stand even a single day” Said Prof Tom Ojienda for LSK.
“The Constitution has clearly stated that the Judicial Service Commission (JSC) shall forward one name of a qualified person to the president for nomination as Chief Justice or chief Justice but the Act has come up with a formulation requiring JSC to forward three names,” said LSK through Senior Counsel Nzamba Kitonga.
Lawyers have opposed the amendment, saying it is against the constitution and amounts to watering down judiciary’s independence.