What you need to know:
- Debate about the appointment of the 40 judges has raged on for two years and created so much bad blood between the President and the Judiciary.
- If the six judges have been adversely cited for acts of impropriety, those facts should be presented to the Judicial Service Commission for administrative action.
Chief Justice Martha Koome has finally come out and asked President Uhuru Kenyatta to swear in the six judges he left out as he gazetted the appointment of 34 others. The President should heed this call. Failure to do so will deepen the conflict between the Executive and the Judiciary and expose the President.
In a more profound way, this stubbornness will define his legacy as one who sought to emasculate the Judiciary, weaken independent institutions and usurp powers that did not belong to him.
Debate about the appointment of the 40 judges has raged on for two years and created so much bad blood between the President and the Judiciary. The point has been made that President Kenyatta’s actions are unlawful. First, he gazetted the names two years late and when he did so this week, left out six judges.
Second, if the six judges have been adversely cited for acts of impropriety, those facts should be presented to the Judicial Service Commission for administrative action.
Constitutionally, the President’s role in judicial appointments is ceremonial. However, President Kenyatta has been seeking to exert executive powers on this process, showing singular failure to distinguish when to use those powers and when to play his ceremonial role.
Besides the constitutional question, President Kenyatta’s action exacerbates an administrative challenge. The Judiciary is severely understaffed and this greatly contributes to delays in administration of justice. If it takes more than two years to fill judicial positions, how long will it take to clear the backlog of cases?
Since he swore to protect the Constitution, President Kenyatta has to respect all its provisions. He cannot choose which parts to honour and those to throw out. Fidelity to the law and respect for independence of institutions is not negotiable.