What you need to know:
- The LSK has since moved to court to challenge the invitation extended to Justice Warsame by parliament to appear for vetting.
- Political players have been looking for ways to do away with JSC members perceived as independent-minded.
Attempts to have the recently re-elected Court of Appeal representative to the Judicial Service Commission (JSC) Justice Mohamed Warsame vetted before formal appointment is being seen as a wider scheme by the executive to take full control of the Judiciary.
With the terms of current Law Society of Kenya (LSK) representatives to JSC, Prof Tom Ojienda and Mercy Deche, ending early next year, attempts to vet Justice Warsame is seen as setting the stage by the executive to influence who will represent the society in the commission post February 2019 period.
“The people behind the push to have Justice Warsame vetted are looking at this as an opportunity to control who sits in the commission so that whoever gets elected by lawyers would either have to play ball or be removed through purported vetting,” Prof Ojienda said.
With parliamentary numbers on its side, the Jubilee administration can easily determine the membership of JSC if the attempt to subject Justice Warsame to vetting is allowed to stand.
Recently elected LSK president, Allen Gichuhi, said that while he does not want to read into the intention of “an obviously bad decision” to vet Justice Warsame, LSK will defend its position and the supremacy of the constitution.
“If parliament proceeds to make recommendations on this matter, the position of the Law Society is that we shall definitely move to court and seek for a declaration of any act that may be passed contrary to the constitution as unlawful,” Mr Gichuhi said.
The LSK has since moved to court to challenge the invitation extended to Justice Warsame by parliament to appear for vetting.
In Attorney General–designate Justice Paul Kihara, the Jubilee administration looks to have a ready accomplice in emasculating the JSC.
While being vetted for the job on Thursday, Justice Kihara supported the push for the nominees from both LSK and the Kenya Magistrates and Judges Association (KMJA) to be vetted by the National Assembly, before they are eventually appointed by the President.
“It is important that once such bodies elect their representatives and before the President makes the appointment, they must be vetted by this House.
"It is only through this vetting that the public has an opportunity to know the nominees and ensure that they meet the expectations as the people’s choice,” Justice Kihara told the Committee on Appointments.
The matter had been raised by National Assembly Majority Leader Aden Duale, who had sought the opinion of Justice Kihara on the subject.
The Attorney-General is the chief legal adviser of the government and Mr Duale wanted to know Mr Kihara’s opinion on the matter that once again threatens to sully the relationship between the Judiciary and Parliament.
“If you are confirmed, what will be your interpretation of these articles as the chief legal adviser to the government?
"What is your interpretation of these articles? Which article is superior between Article 250 and 171?” Mr Duale asked.
Mr Kihara said Article 250, which provides for the mode of appointment for members to the constitutional commissions alongside Article 248, which details JSC as one of the Chapter 15 commission are superior.
This would mean that JSC, just like any other independent constitution, must have its nominees subjected to parliamentary approval.
“My reading is the mode of election in the two bodies is a process. And once they are elected by either LSK or KMJA, provisions of Article 250 and 171 of the constitution come into operation,” the judge said.
Article 171 establishes the JSC and defines its membership, which both the KMJA and LSK have exploited to reject invitation for vetting by Parliament.
Political players have been looking for ways to do away with JSC members perceived as independent-minded and Justice Warsame’s case could just be one in many such efforts.
With Chief Justice David Maraga retiring just before 2022 elections, scheming on who takes over from him seems to have started in earnest by such attempts to influence who sits in the JSC that will recruit a new Chief Justice.
“Justice Warsame is one of those commissioners who is very independent and I think it is not strange that there have been concerted efforts to push those commissioners who are perceived as independent out of the commission.
"That is a trend that we have seen in the wake of all these appointments and reshuffle,” Prof Ojienda said.
According to him, any vetting that is done is no longer about his position in the JSC but his suitability to continue being a judge.
“That is basically what someone is trying to do. It is using the back door to raise questions of his suitability to continue being a judge him.”
Chief Registrar of the Judiciary Anne Amadi, on behalf of the JSC, said the judge “will not subject himself to the process of approval by the National Assembly”.
The Civil Society Reference Group (CSRG) through its presiding convenor Suba Churchill have also added their voice to the developing story by rebuking the Presidency and Parliament of using the back door to undermine the independence of the Judiciary.
Justice Warsame was voted by his colleagues in the Court of Appeal to sit in the commission, winning with 16 votes to four on March 9.