MPs passed a controversial clause introduced by the Justice and Legal Affairs Committee in the law on the appointment of the Chief Justice without debate.
The Law Society of Kenya yesterday instructed four senior lawyers – Nzamba Kitonga, Tom Ojienda, Michael Muchemi and Peter Wanyama – to move to court and challenge the constitutionality of the changes to the Judicial Service Act.
The petition will be filed this morning. While the original proposal from the Attorney General did not specify the number of names the JSC should send to the President, the committee proposed three.
The National Assembly Hansard for December 1 shows that the new clause, as introduced by committee chairman Samuel Chepkonga, was passed without debate. "Basically, we are seeking to streamline the appointment process of the Chief Justice and the Deputy Chief Justice.
When we did the approval of the Deputy Chief Justice in 2013, we had a lot of difficulties with that process. We wanted to reject the nominee, but we found the process to be quite cumbersome.
As a Committee we are seeking to align this provision with the best practice in other legislations," Chepkonga told MPs. The original proposal from the AG was aimed at giving a time limit of three days within which the President should receive the name of the nominee.
"The provisions of this section shall apply to the appointment of the Chief Justice and Deputy Chief Justice except that -
(a) the Secretary shall, within three days of the Commission's vote, forward the names of the persons nominated for recommendation for appointment to the President.
(b) in such case, a person shall not be appointed without the necessary approval by the National Assembly," the proposal by the AG read.
The Judicial Service Act was silent on the time the JSC would take before sending the name of the successful candidate to the President.
The Justice and Legal Affairs Committee however deleted this proposal and introduced the new one that has created a storm. Temporary Speaker Moses Cheboi then put the question but none of the MPs indicated they wanted to speak to the amendment.
Cheboi then went ahead to put the question that the clause in the Bill be deleted and replaced with the proposed one by the Chepkonga Committee.
The original clause only had two subclauses (a and b) but the one introduced by the committee had seven sub-clauses (a to g).
The new provisions require the JSC to submit three names to the President, who will have 14 days to send his choice to Parliament.
Parliament will have 21 days to consider the name, with the Speaker communicating the decision to the President within three days of the vote.
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