On 14 September 2022, the newly elected President of the Republic of Kenya Dr William Ruto appointed six judges whom the Judicial Services Commission of Kenya (JSC) had recommended for appointment in 2019 but the former President Uhuru Kenyatta had refused to appoint them.
In 2019, Judges Joel Ngugi, Weldon Korir, George Odunga and Aggrey Muchelule had been nominated for appointment to the Court of Appeal, while Judges Evans Makori and Judith Omange had been nominated to the Environment and Land Court. However, a stand-off ensued between the Executive and the Judiciary, and lasted for three years as the then President Uhuru Kenyatta refused to appoint them citing integrity concerns. The details of those concerns were never disclosed.
Africa Judges and Jurists Forum (AJJF) notes that the refusal by then President Uhuru Kenyatta to appoint the six judges had been a matter of serious concern, and a violation of the rule of law. Article 166 (1) (b) of the Constitution of Kenya stipulates that “the President shall appoint all other judges in accordance with the recommendations of the Judicial Service Commission.”
In October 2021, the High Court of Kenya ruled that Article 166(1) (b) of the Constitution of Kenya compels the President to make the appointments once candidates have been recommended by the Judicial Service Commission. The same Court also ruled that the six candidates shall be deemed to have been appointed should the President fail to appoint them within 14 days. However, upon appeal by the then President Uhuru Kenyatta, the order of the High Court for the six candidates to be deemed to have been appointed if the President fails to appoint them within 14 days was temporarily suspended by the Court of Appeal in November 2021. The Court of Appeal, however, did not reverse the High Court’s interpretation of Article 166(1) (b) to the effect that the Constitution does not give the President the discretion to refuse to make the appointments of candidates recommended for appointment by the JSC.
Commenting on this development, AJJF Secretary General Martin Masiga said:
“While AJJF commends President William Ruto on the corrective measures he has taken to appoint the six judges in compliance with the Constitution, we urge him to continue building a culture within the executive branch of government, of respecting the independence of the judiciary. It needs to be made clear that the appointment of candidates recommended by the JSC is mandatory and should not be a matter that depends on change of political administration.”
AJJF has also taken note of and commends President William Ruto for making a commitment to increasing funding for the judiciary by an extra three billion Kenya shillings annually for the next five years. Adequate funding for the judiciary is integral for the promotion of access to justice for all, the rule of law and development. However, it is also important to ensure that the judiciary enjoys adequate autonomy in the administration of its funds and other resources.
For more information:
Advocate Martin Okumu Masiga, Secretary General of AJJF,
Email: okumu-masiga@africajurists.org , mobile: +256 753 954 308, Twitter: @mokumas
Dr. Justice Alfred Mavedzenge, Programs Director,
Email: justice-mavedzenge@africajurists.org , mobile: +27 79 388 9990, Twitter: @Dr_JAMavedzenge