Why CJ Koome Must Swear in Six Judges if Uhuru Fails - Miguna

  • Koome Miguna
    Undated photos of Chief Justice Martha Koome (left) and exiled lawyer Miguna Miguna (right).
    Citizen Digital
  • Outspoken lawyer, Miguna Miguna, now says that Chief Justice Martha Karambu Koome must appoint the six Judges as ordered by the High Court

    Speaking during an interview on KTN News Wednesday, October 27, Miguna retaliated that the Chief Justice does not have any other option other than obeying the law.

    The deported lawyer differed with the sentiments that the Chief Justice is doomed whether she swears in the Judges or not after the 14-day grace period given by the High Court.

    Court of Appeal and various Divisions of the High Court at State House, Nairobi for their Swearing-in Ceremony presided over by President Uhuru Kenyatta on Friday, June 4, 2021.

    "I don't understand why people are saying she is doomed if she does and she is doomed if she doesn't. The Chief Justice does not have two options, the Chief Justice must uphold the rule of law. The Chief Justice must obey the court order," he stated.

    Miguna expressed his satisfaction with the three-Judge bench ruling that ordered the President to oversee the swearing-in of the six judges' failure to which their oath of office will be presided over by the Chief Justice.

    He went ahead to state that the President's role in swearing-in Judges is not a constitutional mandate but rather a ceremonial one that can be discharged by the Chief Justice upon the President's failure.

    "There is a valid court order from the High Court, a three-Judge bench that stated quite clearly that the President's role is perfunctory, it is a ceremonial role. So there is no constitutional legal role that the President plays in the appointment of Judges," he stated. 

    "If after the 14 days, the President will not have performed his perfunctory role, his position becomes fantasy. Whatever little role he may have had, ceremonial as it expires, it is extinguished by operation of law. Therefore, the Judges are deemed to have been appointed and the Chief Justice must swear them," Miguna said. 

    On Thursday, October 21, the court declared that Justices Aggrey Muchelule, George Odunga, Weldon Korir, and Prof Joel Ngugi alongside registrar of the High Court Judith Omange and Chief Magistrate Evans Makori. will be deemed duly appointed to the Court of Appeal if the President does not do it in 14 days.

    In the judgment, the three-Judge bench comprising of Justice James Wakiaga, George Nduru, and William Musyoka argued that the President violated the Constitution in his decision to fail to appoint the six Judges.

    President Uhuru defended his decision through the Attorney General, Paul Kihara Kariuki, stating that the six did not meet the threshold for appointment or promotion to the designated courts and referred their nomination back to JSC.

    Kihara, through Deputy Chief State Counsel, Emmanuel Bitta, filed a notice of appeal against the court’s directive that ordered Uhuru to appoint the six Judges seeking to revert the orders which granted Chief Justice Martha Koome powers to overstep President Uhuru.

    President Uhuru Kenyatta in Kirinyaga County on October 18, 2021.
    President Uhuru Kenyatta in Kirinyaga County on October 18, 2021.