By Judith Gicobi
President Uhuru Kenyatta has breached the Constitution by failing to appoint six of the 40 justices selected by the Judicial Service Commission (JSC) three years ago, according to Chief Justice Martha Koome.
The CJ also wants the court to rule that the only way to resolve the alleged infringement is for the President to be impeached. Ms Koome has also declined to play the President’s role in an appeal against a High Court order directing Mr Kenyatta to appoint the six justices and, if he fails, the CJ to take over the responsibility.
Rather, she has advocated a statement that the President has breached Articles 3(1) and 166(1)(b) of the Constitution, or any other order that ensures the President’s direct accountability.
“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 impeachment of the President or any other order that secures direct accountability of the President,” she says in the court papers.
Even if the President is found to have violated the Constitution by the appellate court, the planned impeachment may not proceed because it is a lengthy legal process and the President is eight weeks away from the end of his tenure.
In addition, Parliament has been adjourned indefinitely in preparation for the General Election on August 9.
Article 145 of the Constitution, which deals with impeachment, stipulates that an impeachment motion proposed by a member of the National Assembly must receive the support of at least a third of all members (232 MPs).
CJ Koome argues that the President has broken Article 3(1) of the Constitution, which provides that “every person has an obligation to respect, uphold and defend this Constitution”.
Article 166(1)(b), which specifies that “the President shall appoint all other judges, in accordance with the recommendation of the Judicial Service Commission,” is another clause she asserts Mr Kenyatta has broken.
The President cited a negative National Intelligence Service (NIS) brief in rejecting the nomination recommendations for the six nominees. They’re tainted, he says.