On Friday, March 31, the Supreme Court, ruled that the President has no authority to appoint elected members of the Judicial Service Commission.
The five-judge bench, comprising Justices Ibrahim Mohamed, Smokin Wanjala, Isaac Lenaola, William Ouko, and Njoki Ndungu, added that the officials cannot be vetted by the Parliament too.
According to the judges, Article 171 establishes the JSC, as an independent body and a self-executing commission, with a clear mode of identification, qualification, appointment, and commissioners' terms.
“We believe and hold the firm view that the President can only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President has no ceremonial role in appointing elected and nominated commissioners of the JSC,” the judges ruled, in a verdict, Justice Njoki Ndung’u dissented.
“There is no basis, constitutional or legal, for a member of the JSC elected or nominated under Article 171 to be vetted and approved by the National Assembly before an appointment,” they added.
However, the judges stated that only those commissioners of the JSC upon whom there is a constitutional obligation for vetting before the appointment has to be approved by the National Assembly. These are nominees appointed by the President under Article 171(2)(h) of the Constitution - one woman and one man to represent the public.
Section 15(2) of the JSC Act, the apex judges added, was inconsistent with the law as it donated power to the President to appoint elected and nominated members of the JSC, an independent body devoid of third-party interest.
“Section 15(2) goes against the letter and spirit of Articles 1(3) and 2(2), which stipulate that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person may claim or exercise State authority except as authorised under the Constitution,” the Supreme Court declared.
Justice Njoki Ndung’u, who dissented, however, argued that the President can make the appointments by virtue of being a bearer of the Office of the Presidency, powers granted by the people, whom he represents.
She added that elected members to the JSC should be vetted and approved because parliamentary approval for State officers (including all JSC Commissioners) is required, as the law stipulates.
The judges ruled on the appeal filed by the Law Society of Kenya opposing the election of Justice Mohammed Warsame to JSC. Warsame was re-elected by the Justices of the Court of Appeal to serve a second term as their representative to the JSC.
The JSC consists of eleven (11) members; the Chief Justice, Martha Koome, who is the chairperson; the Attorney-General; representatives of the Supreme Court, Court of Appeal, High Court, the Magistracy; the legal profession (2); the public (2); and the Public Service Commission (PSC).
