Chief Justice(CJ) Martha Koome has asked the Appeal Court to rule that President Uhuru Kenyatta violated the Constitution when he failed to appoint six of the 40 judges that were presented to him three years ago after nomination by the Judicial Service Commission(JSC).
Koome wants the court to declare that Kenyatta is impeached following the violation of the Constitution. The Constitution allows the CJ to take over the President’s powers if the President fails to perform his role, as seen in the appointment of the four judges.
The CJ, however, has proposed that the courts declare that the President has violated Articles 3(1) and 166(1)(b) of the Constitution and thus bears direct accountability of the President.
“It is proposed that the court makes a declaration that the President… is in violation of Articles 3(1) and 166(1)(b) of the Constitution. A declaration that the appropriate remedy for the violation of Articles 3(1) and 166(1)(b) of the Constitution is the impeachment of the President or any other order that secures direct accountability of the President,” she says in the court papers.
However, it seems to be a tall order considering that even if the appellate court finds that the President violated the Constitution, the proposed impeachment may not go through. First, because Parliament has since adjourned indefinitely for the August 9 General Election, and the President is eight weeks away from the end of his term.
A key provision that the CJ alleges Kenyatta has violated is Article 166(1)(b), which states that “the President shall appoint all other judges, in accordance with the recommendation of the Judicial Service Commission.”
The President cited an adverse National Intelligence Service (NIS) brief that showed that the judges not appointed are tainted.
The judges at the center of the legal tussle are Justices George Odunga, Aggrey Muchelule, Prof Joel Ngugi, and Weldon Korir, whom the JSC had elevated to the Court of Appeal. The others are chief magistrate Evans Makori and High Court deputy registrar Judith Orange pomoted to be High Court judges.