Between 23rd July, 2019 and 13th August, 2019 the Judicial Service Commission (the “JSC”) recommended to the President, the names of 11 persons for appointment to the office of judge of Court of Appeal, 20 persons for appointment to the office of Judge of Environment and Land Court and 10 persons for appointment to the office of Judge of the Employment and Labour Relations Court as required under Article 166 of the Constitution of Kenya, 2010.
H.E. Honourable President Uhuru Kenyatta declined to make the said appointments on the ground that he had received adverse reports on some of the nominees.
Mr. David Kariuki Ngari and International Economic Law Center (“The Petitioners”) filed David Kariuki Ngari & another v Judicial Service Commission & another; Law Society of Kenya & 2 others (Interested Parties) [2020] eKLR seeking the High Court to determine whether the Constitution of Kenya, 2010 allows for post nomination reconsiderations; if after recommendation by the JSC issues arise that would have otherwise disqualified such a candidate.
The Petitioners also contended that the entire process of recruitment was flawed because the JSC had failed to conduct a needs assessment prior to the declaration of vacancies so as to determine the number of judicial officers needed for the various offices. They also argued that the JSC had failed to engage the members of the public and relevant stakeholder in public participation to facilitate the determination of the number of vacancies that were required to be filled prior to the publishing and declaration of the vacancies. The court delivered judgment on 6th February, 2020.
The court’s finding was that the Constitution does not donate mandate to the President to perform any other act upon receipt of the names recommended by the JSC except to appoint them. Any evidence regarding the lack of integrity of a candidate must be communicated to the JSC prior to the submissions of the names to the President. In any case, the JSC is also restrained from reconsidering its nominees after names are submitted to the President except in the case of death, incapacity or withdrawal of the nominee. Therefore, the President is under a constitutional duty to appoint person recommended to it by the JSC. Post nomination reconsiderations by the President are unconstitutional.
On the issue of public participation, the court held that there is no statutory duty placed on the JSC to conduct public participation before declaring vacancies in the office of Judge. Public Participation is a mandatory requirement after declaration of vacancies. The court found that the JSC had discharged this duty when it gave the members of the public ample time to make their submissions on shortlisted candidates prior to recommending the names to the President for appointment. Additionally, the composition of the JSC is itself a product of public participation since the various representatives (Judges, Magistrates, Law Society of Kenya, the Public Service Commission and members of public) are appointed by their peers.
The court further held that there is also no mandatory requirement on the JSC to conduct a needs assessment before declaring vacancies in the office of Judge. The use of “may” in legislation means that it is not a mandatory requirement. The court further noted that the JSC had conducted a needs assessment when it called for a Report from the presidents of the superior courts. The Report concluded that there has been an acute shortage of judges in the superior courts and that a number of the current judges were due to retire.
We shall update you on the appointments of the Judges to the various courts.
The court decision is available here.
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