Controversy over Friday’s verdict to have Court of Appeal Judge Mohamed Warsame sworn in as Judicial Service Commission(JSC) is likely to push further the not rosy relationship between Judiciary, the executive and Parliament.
President Uhuru Kenyatta opted to stay silent about signing Justice Warsame’s appointment, but it spoke of his stand that the judge has go through Parliament’s vetting.
At the same time his appointees to JSC including former Kenyatta University Vice Chancellor Prof Olive Mugenda had to wait as Chief Justice David Maraga decided not to swear them in bits.
Judiciary’s Chief Registrar Anne Amadi wrote a protest note to the Clerk of the National Assembly Michael Sialai saying Justice Warsame’s vetting idea was “unlawful, unconstitutional and undermines the independence of the Judiciary.”
JSC sued and got favorable orders to have President Kenyatta pass Warsame minus vetting but he just went on as if nothing was happening.
The CJ however backed down swore the commissioners who also included Attorney General Kihara Kariuki who was Warsame’s boss in the Court of Appeal.
Others who took oath of office last year November are former clerk of the National Assembly Patrick Gichohi and former Cabinet Secretary Felix Koskei.
Justice Warsame’s case went to court a second time, through Law Society of Kenya (LSK).
This time the court decided to by-pass President Kenyatta in the JSC appointment process, meaning all those who are elected- judges and magistrates’ representatives- can be sworn in without formal appointment by the President.
The case determined by High Court judge Chacha Mwita means that Warsame will not be vetted, something that Parliament and Executive have expressly stated that he must do.
In fact Parliament had passed a report that the Court of Appeal judge should not get the JSC job.
Justice Mwita said President Kenyatta had held a Constitutional process hostage.
“In any case, an administrative action such as the President’s cannot hold a constitutional process hostage,’ said Justice Mwita .
It means that Justice Warsame will have an interesting but rocky tenure as a member of the commission as he will not have the blessings of the President and Parliament on the other hand.
The decisions by JSC have to be actioned by President, as they make a recommendation to him to appoint tribunals.
In view of the impasse between JSC and Executive plus Parliament on the other hand, this might bring more turmoil and fights in the third arm of Government.
At the same time, Parliament allocates money and the President might decide to punish JSC through that.