Attorney-General Paul Kihara wants CJ Martha Koome and her Deputy Philomena Mwilu off the bench of judges that will hear and determine the petition filed by the Law Society of Kenya (LSK).
Through the Principal State Counsel Mr Thande Kuria, he said the two judges are likely to be biased and conflicted in the matter as it involves the swearing-in of the Court of Appeal judge Mohammed Warsame as a JSC member without formal appointment by President Kenyatta.
“I saw the composition of the bench and realised that the chief justice and her deputy chief justice are members of the bench and they are also members of the JSC as the chairperson and representative of the Supreme Court judges, respectfully,” Thande stated.
He went further and stated that they want a reconstruction of the bench afresh to replace the two judges to eliminate any perception of bias or possible conflict of interest.
He raised the concerns through a letter dated July 6 to the court. However, the court adjourned the hearing and directed Mr Thande to file a formal application within 7 days seeking the recusal of the two judges.
Justice Koome said the letter was an improper way of approaching the top court.
In the petition, LSK wants the Supreme Court to determine whether section 15(2) of the Judicial Service Act,2011 is constitutional for giving the president extra-constitutional powers to appoint members of the JSC.
Through lawyer Dudley Ochiel, LSK says the act requires the name of JSC members nominated by the Supreme Court, Court of Appeal, Kenya Judges and Magistrates Association and LSK to be submitted to the president for appointment.
“The section is unconstitutional, both in its purpose and in effect,” Mr Ochiel says.
The other Judges on the bench are Mohamed Ibrahim, Njoki Ndung’u and William Ouko.
