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The Miscellaneous Amendment Act that alters section 30 of The Judicial Service Commission Act is suspicious. These changes by the Executive comes at a time when Kenya is gearing up for 2017 general elections. The amendment gives the president a larger latitude in determining the holders of the position of Chief Justice and Deputy Chief Justice. This sudden quest for more powers by the Presidency raises a number of questions.
One, the Chief Justice shall be retiring soon, while his deputy is still contesting her retirement in court. Therefore, the process of appointing a new Chief Justice shall be in motion shortly. Does the presidency want to impose on Kenyans a Chief Justice of their own choice?
Secondly, the President shall be the incumbent in the next election. Does he want to extend his tentacles in all institutions of government to secure the Presidency by hook or by crook? We all know that the Chief Justice has a big role in determining the President.
Thirdly, the Constitution of Kenya created the Judiciary Service Commission to shield our justice system from selfish political interference. Does President Kenyatta want to take us back to where we came from?
Those justifying this amendment have argued that, in the past, the President was only used by the Judiciary Service Commission as a conveyer belt to the Parliament in appointing the top judges. And therefore, the amendment wants to remedy this, and give the President a say in the process. But is it true that the President doesn’t have powers? The composition of the JSC itself negates this argument. JSC has two members who are directly appointed by the President.
In the course of last year, the President appointed Ms Winnie Guchu and Mr. Kipngetich arap Korir to the JSC. These two members who are supposed to represent the public in the Commission through a Presidential appointment, may also be used by the president to table his concerns in vetting candidates to be appointed as judges. Therefore, the argument of the President being a mere “conveyer belt” in the process of appointing top judges does not hold water.
History teaches us that the Judiciary is a delicate institution that ought to be shielded from permeation of sectarian political interest. The violence that erupted in Kenya in 2007/8 had a lot to do with the weak justice system in Kenya. Mr. Odinga who alleged that he had been rigged out by the incumbent, former President Mwai Kibaki, refused to go to court claiming that the courts could not be trusted to deliver justice. What followed is what will forever remain as a blackspot in the history of our country.
In 2017, Kenya will be at the same position it was in 2007. An incumbent competing against a fierce opposition leader. The legal infrastructure that the country put in place after the violence is meant to be beyond reproach to independently arbitrate even the most boisterous of all political antagonism. It is in light of this that Kenyans must oppose the amendment of Judicial Service Commission Act.
What do you think?
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