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Katiba Institute contests ‘cherry-picking’ of 34 judges, omission of six by President Kenyatta

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Katiba Institute contests 'cherry-picking' of 34 judges, omission of six by President Kenyatta
President Uhuru Kenyatta chairs the sixth extraordinary session of National and County Governments Co-ordinating Summit on November 4, 2020. PHOTO | PSCU

Katiba Institute has filed an application contesting the appointment of 34 judges and omission of six others by President Uhuru Kenyatta.

The institute termed the move by President Kenyatta as cherry-picking, saying the swearing in of the 34 would violate the Constitution as well as the rights of the remaining six.

Katiba, in an application filed through lawyer Dudley Ochiel on Friday, argued that Article 166( 1) commands the President to appoint judges of superior courts in accordance with the recommendation of the Judicial Service Commission (JSC).

They faulted President Kenyatta for not giving any reasons or explanation for the omission of the six judges, adding that none would be tenable anyway as it amounts to undermining the Judiciary and its independence.

“Cherry-picking also illegally serves as a constructive removal of the nominees already as sitting judges. A fact which is both unconstitutional and highly stigmatizing,” read the application.

“The cherry-picking and selective appointment or swearing in of judges undermines the functions and powers of the Judicial Service Commission and the functioning of the Judiciary. It also is an improper extension of the role of the Executive and has created a constitutional crisis.”

Katiba Institute now wants the court to issue an order stopping the Chief Justice and the President from swearing in the 34 judges without the other six contrary to the recommendation of the JSC in 2019 pending hearing of the application.

They further want the court to issue an order barring the Chief Justice and the JSC from assigning duties to the 34 appointed judges.

President Kenyatta on Thursday evening finally appointed the judges who were recommended by the JSC more than two years ago.

In a Gazette Notice dated June 3, the Head of State appointed 34 judges from the 41 who had been nominated by the commission.

The President declined to appoint Justices Weldon Korir, Aggrey Muchelule, George Odunga and Prof. Joel Ngugi.

The nomination of two other candidates; Makori Evans Kiago and Judith Omange Cheruiyot, was also declined.

The names of the rejected candidates have been referred back to the commission.

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