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Top court reins in President over judge appointments

Publish date: 10 February 2020
Issue Number: 859
Diary: IBA Legalbrief Africa
Category: Constitutional

Kenya's President Uhuru Kenyatta has violated the constitution by not appointing judicial candidates whose names were given him by the Judicial Service Commission in the middle of last year. That's according to a finding of the country's Constitutional Court, which has held that the President plays only a ceremonial part in judicial appointments and was constitutionally obliged to enroll those chosen by the JSC. The judges said Kenyatta had no constitutional power to 'review, reconsider or decline to appoint' those recommended by the JSC. The significant new decision follows many months of silence from the President in the wake of the JSC's recommendations for appointment, writes Carmel Rickard in her A Matter of Justice column on the Legalbrief site. According to Kenyatta, who argued that he had the right and the duty to decide for himself whether the JSC nominations were appropriate, questions were raised about some of the candidates by the country's intelligence services. Rejecting this justification, the court said the appointment of judges 'should be immediate and as soon as recommendations are forwarded to him' by the JSC, and suggested that the process should take no longer than 14 days. The strongly-worded decision is the latest in an ongoing struggle between the President and the judiciary dating from at least 2017 when the Supreme Court annulled national elections and ordered a fresh round of voting across the country.

A Matter of Justice

Judgment