BY SAM ALFAN
The Judicial Service Commission has been accused of sneaking in a seventh person for appointment as a court of appeal judge appointed by President Uhuru Kenyatta last week.
According to a petition filed by Activist Okiya Omtatah, he is aggrieved that it is practically impossible under the Constitution of Kenya 2010 for the JSC to appoint seven individuals to fill six vacancies.
He adds that if the vacancy really existed, then that one slot, the seventh, was deliberately hidden from the public to achieve improper motives or to advance corrupt practices.
“Either way, this display of impunity by the JSC, where it announced six (6) vacancies but recommended seven persons to be appointed to fill them, is unconstitutional and fatal to the entire recruitment,”
“Six of the gazetted individuals are High Court judges and one is an advocate of the High Court,” Omtatah says.
He further adds that of the six Employment and Labour Relations Court judges who applied four (were shortlisted. Both the two ELC judges who applied were shortlisted and in what has become the norm for the JSC, no judges from the Environment and Land Court (ELC) and from the Employment and Labour Relations Court (ELRC) were considered for appointment although several applied.
He said, “In fact, as matters stand today, the outcome of the recruitment was already predetermined against appointing any judge of the two courts to the Court of Appeal.”
Omtatah as a consequence wants the court to suspend the accession of the seven judges to their new offices.
In a petition filed in court, Omtata holds that the Gazette Notice No. 8665 of 19th July 19, 2022, vide which the President appointed seven to be Judges of the Court of Appeal should be suspended.
He also claims that the Judicial Service Commission has failed to appoint judges from the Environment and Land Court and Employment.
The Judges appointed by President Kenyatta include Justice Luka Kimaru, Lydia Achode, Fredrick Ochieng, John Mativo, Grace Ngenye, Aroni Abida Ali and Paul Mwaniki.
Omtatah seeks temporary orders to restrain Judicial Service Commission, Attorney General and President, whether by themselves, or any of their employees or agents or any person claiming to act under their authority, from proceeding to give effect, howsoever, to Gazette Notice No. 8665 of July 19, 2022, including by swearing them into office or allowing the seven appointed to operate as Judges of the Court of Appeal.
In the court documents, Omtatah wants the judges to restrained from operating or occupying the public office of Judges of the Court of Appeal.
” It cannot be overstated that there is critical need for diversity at the Court of a appeal given that appeals from the two specialist courts lie at that Court,” adds omtatah.
He adds that when interviewing candidates for appointment as judges, the JSC never upholds provisions of the Constitution on transparency and accountability, and on equal opportunities. The JSC is bound by Article 10 to disclose to the public the scores of each candidate but the Commission does not do so.
“This lack of transparency and accountability is what has resulted in the JSC recommending seven persons for appointment to fill the six advertised slots
and since, in further contravention of the constitutional imperatives of transparency and accountability, the Interviews were not done openly, there is prima facie evidence in the eyes of the petitioner and interested public that the judges are solely not hired because of the courts they serve in,” he held.
Justice Hedwig Ong’undi direct direct Omtatah to serve all the parties within five days. The matter will be mentioned on July 28 for further directions.
