Chief justice David Maraga.
The Judicial Service Commission (JSC) gobbled approximately Sh25 million to hire the 41 judges who have since been rejected by President Uhuru Kenyatta, leading to a protracted court battle.
And it is now emerging that President Kenyatta struck a deal with JSC in 2015 to keep his hands off its nominees, a deal he seems to have reneged in revelations made in court this week.
Yesterday, the office of the former Chief Justice Willy Mutunga confirmed existence of the 2015 deal in which the President was not going to stall the process at the very end and after use of public resources.
In what is arguably one of the most expensive hiring, JSC commissioners spent 31 active days sorting, skimming, shortlisting and interviewing 502 applicants for Court of Appeal, Employment and Labour and Environment and Land courts.
Many more days were spent considering the shortlists and final hiring of the 41 judges in a special retreat usually held in the coastal city of Mombasa. All through, the Attorney General and two commissioners appointed by the President attended the sittings.
According to JSC insiders, a commissioner takes home Sh40,000 for every sitting. It is estimated that the whole process, from considering the number of vacancies to deciding on final recruits, took close to 50 days with each commissioner taking home close to Sh2 million.
“It is members of the public who are going to suffer at the end of the day,” Tom Ojienda told Saturday Standard.
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JSC advertised for 11 Court of Appeal vacancies and received 113 applications. Only 35 candidates were shortlisted for the interviews that were conducted from June 17 to June 27. JSC received 229 applications for the Environment and Land Court, while the Employment and Labour Relations Court attracted 160 applicants.
The commission interviewed 63 shortlisted candidates for the Environment court and 29 for Employment from July 9 to August 8. This translated to 23 days. Interviews for those eyeing Court of Appeal were conducted between July 9 and August 8, a total of nine days.
“I communicated that consensus to judges and you can find traces of it in my valedictory speech. Besides, I believe that the President is subverting an earlier court decision. I trust the courts will settle this once and for all,” Mutunga said yesterday of the 2015 deal.
In his message to the judges titled “reflections on the process of recruiting the CJ and the DCJ” and obtained by Saturday Standard, Mutunga made reference to the deal:
“We recall that we reached a consensus with the President on his participation in the recruitment process of judges in a way that does not undermine the constitutional independence of the JSC but rather reinforces it through receipt of additional or privileged information that may better decision making.”
He emphasised the point: “I reiterate that we agreed that although the Executive is represented in the JSC, the JSC would be ready and willing to receive comments on the suitability of candidates from the President.”
The comments were however to be availed to the candidates adversely affected for their response in the interests of due process. Positive comments on candidates from the President would also be considered.
Ultimately, it is the constitutional mandate of the JSC to make the final decision after the recruitment.
According to former Chief of Staff at the CJ’s office Duncan Okello, the agreement was reached between the President and JSC at a meeting held at State House ahead of a swearing in ceremony of a few judges.
“It was verbal,” Okello, who now works in the Office of the former CJ, told Saturday Standard.
Later after this agreement, the courts through a five-judge bench delivered a blow to the President on his earlier delay in appointing judges already nominated by JSC.
In the matter, the Law Society of Kenya (LSK) said the President had delayed in appointed 25 judges submitted to him on January 11, 2014 by JSC. On June 27, 2014 five months later, the President appointed 11 of the 25 and indicated that he was still “processing” the rest for either “approval or disapproval.”
In their judgement, Judges Richard Mwongo, George Odunga, Weldon Korir, Mumbi Ngugi and late Joseph Onguto said the President’s interests were taken care of in the nomination process by the Attorney General and his two other appointees. They said once finalised, his only other role was the formality of appointing them.
“By therefore opening a window for the President, even in a small way, to decide which nominees to appoint and which ones to reject would be a relapse to old system which was overwhelmingly discarded by Kenyans in a referendum,” they said.
Nepotism and tribalism
Further, they said, this would open a window to what they called “manipulation and horse-trading” in the process of appointment of judges. Other ills likely to be reintroduced, they warned, would be partisanship, nepotism, negative ethnicity and tribalism, cronyism, patronage and favouritism.
“We declare that upon the submission of names of persons to be appointed as judges to the President by JSC, the President is not mandated and/or required to conduct any process of approval or disapproval and any such purported process is unconstitutional and is therefore null and void ab initio.”
Yesterday, Ojienda said the President is creating a constitutional stalemate by “creeping into a jurisdiction” that he is not supposed to.
“The President should then commence the removal of JSC members if he is sounding a vote of no confidence on them for nominating the judges,” he added.
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