President Uhuru has been stripped of the power to appoint the Chief Justice and the deputy for the time being, following the temporal suspension of such power until the case filed by Law Society of Kenya is heard.
High Court Judge Isaac Lenaola also issued the Judicial Service Commission an order not to make public the vacancy of the two positions until the case is resolved, noting that the parties involved will appear for hearing on February 3. The order was to ensure that succession race does not commence until the case closes.
According to Justice Lenaola, the reason for not letting JSC to begin Judiciary’s recruitment process was that the commission might use the orders which suspend the disputed Act to its advantage by filling vacant offices before the matter is solved.
Quoting Justice Lenaola,
It shall not act in any way commence recruitment of the Chief justice and the Deputy Chief Justice until the hearing of the application, and on that day, it will be at liberty to act.
Furious legal experts issued a cautionary warning to Kenya, insisting that if the Executive and Legislature are allowed to pass laws that will contradict the supreme law and smash independent arms of Government, the country’s constitutional and democratic benefits approved in the 2010 referendum will be put in jeopardy.
LSK lawyers Nzamba Kitonga and Tom Ojienda reminded the court that the legislators stowed in clauses into the Judicial Service Commission Act that had not been presented to the Justice and Legal Affairs Committee for the first time for consideration, all in a supposed bid to dilute the Judiciary’s independence.
Willy Mutunga and his deputy Kalpana Rawal are due for retirement this year. That being so, President Uhuru Kenyatta has the legal power to appoint the next Kenya’s courts president out of the three persons recommended. But that will be until the suspension is cancelled.