Who’s fooling whom on judges appointment row?

Alleged alteration of a list of judiciary nominees President Kenyatta rejected has sparked fresh controversy over the longstanding impasse on judges’ appointments.

Retired Chief Justice David Maraga has said the list of nominees the president had expressed reservations about had changed, a position also held by his predecessor Willy Mutunga.

And the immediate former Judicial Service Commission (JSC) vice chair Dr Mercy Deche told Nation two of the four High Court judges snubbed in appointments done by the president recently after a two-year standoff were not in the initial list furnished to JSC in 2019.

Dr Deche explained although the number of those the executive had raised concerns about was still six, two names omitted during recent appointments had not featured in the initial list.

"The names of the judges have been switched. Two were originally there but two have been switched," said Dr Deche without giving names of the two judges allegedly introduced in the list.

She left the JSC in March this year after completing her five-year term as the female representative of the Law Society of Kenya (LSK).

Two magistrates

Dr Deche explained even in 2019 the nominees that the executive rejected were judicial officers -four being High Court judges and two magistrates. The names of the magistrates, she said, remain the same.

They are chief magistrate Evans Makori and High Court Registrar Judith Omange.

Read: Raila, Kalonzo allies condemn move to leave out six judges

The four judges, who had been recommended for promotion to the Court of Appeal, but whose names were omitted in the list of 40 appointments are Justices Joel Ngugi, George Odunga, Weldon Korir and Aggrey Muchelule. The six judicial officers are still carrying out their duties.

Dr Deche said two of the seven new Court of Appeal judges sworn in recently at State House, Nairobi, were among the judicial officers that the National Intelligence Service (NIS) had claimed it has adverse reports against them.

"There was a list (from the NIS) of persons with adverse reports that were unsubstantiated. When I compare that list as I recall and the ones that have been gazetted, I see changes. There are some names that have been added," Dr Deche had explained in another television interview.

"I can confirm there are persons who were not in the list and are now in there. People who had no adverse reports then but now are in the list," she added. 

She disclosed the letter from NIS to the JSC opposing nomination of the six to the superior courts was a one-liner only stating 'we have adverse reports against the following'.

It listed them without giving particulars of the said adverse reports and the author said NIS had discharged its mandate, according to her.

 Justice Maraga, who left office in January this year, has said that before his departure, he had been furnished with the list of nominated judges that President Kenyatta did not want to appoint.

The former CJ has, however, said he was surprised because the names of the six judges that the President omitted are different from the ones that were rejected then.

"The names have changed and they are different. Some names have been added and others removed. Those who were said to have issues have been appointed and others removed from the list. If it was a bona-fide allegation why the shift or why change the list?" Justice Maraga posed.

Justice Maraga seemed to suggest Justices Ngugi and Odunga, who were among five judges of the High Court who nullified the Building Bridges Initiative constitutional reforms campaign, were the late inclusions to the list.

"It is common knowledge proponents of the BBI are not happy. Their rejection (of Ngugi and Odunga) could be due to that judgment," Mr Maraga said last week.

Also commenting on the president’s decision to omit the names of six judicial officers from the list of appointed judges, Dr Mutunga had remarked: “The presidential ‘list of hate’ has even mysteriously changed, meaning that the objection to the judges’ nomination is driven more by personal pique rather than principle.”

Our efforts to get a comment from State House proved futile because spokesperson Kanze Dena declined to answer phone calls or respond to text messages.

The Judiciary Chief Registrar Anne Amadi also failed to respond.

But when witnessing the swearing-in of the 34 judges at State House, President Kenyatta said he had a constitutional duty not to appoint individuals to State positions if reservations had been raised by a State agency.

“For just like you today, I too, took an oath to both the letter and the spirit of the law; and it is not open to me to turn a blind eye to the report of our state organs.

“As long as I serve as President, I will choose the right over the convenient, I will choose the hard over the easier choice. I am not doing this for myself, but for the People of Kenya, and for posterity,” the President said.

Lawyer Danstan Omari, for the Kenya Judges and Magistrates Association, said the executive should make a formal complaint against the six judicial officers instead of denying them promotions and ruining their careers.

Chief Justice Martha Koome, who is also the JSC chairperson, at the weekend urged President Kenyatta to swear-in the six judges as she insisted that all persons nominated by the JSC must be appointed in accordance with Kenyan law.

“As we welcome our seven new judges at the Court of Appeal, this is a bitter-sweet moment for the four colleagues not with us. I reiterate my position as CJ and Chair of JSC that all persons recommended by JSC must be appointed as judges," said Justice Koome following the swearing in of Justice Daniel Musinga as President of the Court of Appeal.

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