President Kenyatta’s decision to block the appointment of six judges as recommended by the Judicial Service Commission (JSC) has been criticized by a cross-section of Kenyans who describe the move as outright illegality.

Among the judges who were left out are Justices Joel Ngugi and George Odunga, who were among a bench of five judges that quashed President Kenyatta’s push to amend the constitution through the Building Bridges Initiative (BBI).

Others who were left out are High Court Judges Weldon Korir and Aggrey Muchelule and magistrates Evans Makori Kiago and Judith Omange, both of whom had been appointed to the Employment and Labour Relations court.

Politician and law scholar Kithure Kindiki termed the decision as unfortunate saying the public humiliation of the six judges is the biggest single attack on the Judiciary yet.

“I shudder to imagine how litigants will view these judges when they appear before them tomorrow morning. Any adverse information on these judges ought to have been brought during JSC hiring for consideration before the list was forwarded for appointment,” he said.

The lawyer, who is also Tharaka Nithi Senator said the role of hiring judges is the sole and exclusive constitutional responsibility of the JSC and the president’s role in it is to mandatorily appoint them upon recommendation by JSC

The appointment comes two days after President Kenyatta unleashed an attack on the Judiciary during the Madaraka Day celebration in Kisumu. He attacked the Judiciary over nullification of his election in 2017 and decision by the five judge bench to declare his own initiative of BBI as unconstitutional.

“From nullification of a presidential election in 2017 to an attempt to stop the will of the people as expressed through BBI, the Judiciary has tested our constitutional limits,” the President said.

Veteran lawyer Ahmednasir Abdullahi termed the President’s move as unacceptable, saying a big test for Chief Justice Martha Koome and JSC was a watershed moment in the history of judicial independence.

“I think CJ Koome and JSC must have an emergency meeting and resolve unanimously to engage H.E UHURU with one agenda: “Appoint all 40 judges OR none will come for swearing in State House,” said Ahmednasir.

He added that Justices Joel Ngugi and George Odunga are prospective Justice of the Supreme Court and potential chief justice and they shouldn’t worry about this transient Act of executive skullduggery.

While condemning the President’s move, senior counsel Martha Karua said cherry-picking of JSC appointees may amount to deliberate intimidation of judiciary especially in view of the uncalled for attacks of the institution by the President in Kisumu coupled with the pending BBI appeal we must stand firm to protect the constitution.

Karua added that Kenyans cannot leave the defence of constitutionalism and the rule of law to judiciary and JSC alone. “All Kenyans of goodwill must join hands to protect our independent institutions and to protect the constitution.”

Karua, who is a former Justice Minister further added that Attorney General Kihara Kariuki represented the executive at the commission when these appointments were made and that is where the executive’s sentiments should have been tabled and JSC has the mandate to recommend appointees and not the president.

Prof Makau Mutua on his part said BBI judges Joel Ngugi and George Odunga have been denied elevation to the Court of Appeal and President Kenyatta can’t choose which provisions of the constitution to obey or disregard. 

He added that gazetted judges should decline their appointment until all JSC-recommended judges are included.

Rarieda Member of Parliament Otiende Omollo said the President Cannot Select Which Judges to Gazette after JSC Recommendation.

Senator Kipchumba Murkomen added his voice by congratulating all the Judges whose appointments were confirmed after needless and inordinate delay.

“In a blatant violation of the Constitution the President is using the opportunity to punish Judges he doesn’t like and this is a very dangerous path. He is setting a bad precedent,” he tweeted.

He further added that he was not so worried about what Uhuru has done on judicial appointments but he was more worried by the thought that all judicial appointments in the future will depend on the wishes of the president. Makes nonsense of Judicial Independence under our Constitution.

Lawyer Muthomi Thiankolu said the President’s message is that he will thwart the career progression of any judge or magistrate that decides cases against the executive or political establishment of the day. Irrespective of whether the executive or political establishment has breached the law.

“Judges are moved by law, facts, excellent legal research and persuasive advocacy or argument. Not threats, intimidation, insults or tirades. That’s why the Constitution gives them security of tenure,” he added.

On his part, Law Society of Kenya President Nelson Havi said once President Uhuru Kenyatta leaves office in September, 2022, Justices Muchelule, Korir, Ngugi and Odunga will then ascend to the Court of Appeal.

“For Chief Justice Emeritus David Maraga it was all 40 Judges or none, a stand supported throughout by LSK. Chief Justice Martha Koome has weakened the Judiciary by conceding to the rejection by Uhuru Kenyatta of four Judges and two Magistrates,” he tweeted. 

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