Former Chief Justice Willy Mutunga has written a hard hitting letter to President Uhuru Kenyatta over the six judges who were left out in the recent appointments.
In his letter, Mutunga says the president’s conduct on the issue is beneath the dignity of the high office which amounts to pettiness.
Mutunga has called on the Head of State to appoint the affected judges as recommended by the Judicial Service Commission as it was the right thing to do.
“It is urgent that the President immediately appoints the six judges, many of whom are exceptional because that’s what fairness, common decency, the rule of law and the Constitution require,” he said.
While he acknowledges that the President may have valid concern over suitability of the six judges to occupy public offices based on intelligence and information availed exclusively to him, the former CJ says that is water under the bridge given that such issues were not raised at an appropriate time.
“If the President has any adverse reports on any shortlisted candidates for judgeship, he, both in his privileged position as Head of State and as a citizen of Kenya and a member of the public, would share that report with the JSC at that stage (not later) in the recruitment process,” he stated.
According to him, during the recruitment of the 41 judges, the President did not present any adverse reports at the appropriate leaving JSC with no option but to make recommendations for appointment.
“That points to bad faith, and most likely, absence of any actionable information on the judges,” he said.
Further, Mutunga added that the JSC discharged its mandate properly and completely in 2019 by recommending the appointment of 41 judges.
Therefore, he says the President is obliqued to appoint all the recommended judges without hesitation.
He says the constitution is clear on the mechanism for raising any issue the president or any other person may have against a sitting judge or judicial officer at whatever level.
President Uhuru gazetted the appointment of 34 out of the 41 judges nominated by the Judicial Service Commission (JSC) to join various courts, among them the Court of Appeal, in 2018.
However, the President declined to approve the nomination of Aggrey Muchelule, George Odunga, Weldon Korir and Prof Joel Ngugi who were recommended for the Court of Appeal. The head of state also left out judges Evans Makori and Judith Omange Cheruiyot, who had been recommended for the Labour Court.
Mutunga now joins the list of legal team that have rebuked the President’s move to leave out the six judges in the appointments.