Former Chief Justice Dr. Willy Mutunga has weighed into the ongoing debate regarding the failed nomination of six judges into the country’s superior courts.
In his passionate appeal to President Uhuru Kenyatta Tuesday, Mutunga has called on the Head of State to appoint the affected judges as recommended by the Judicial Service Commission as “this was the right thing to do,”
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 Ex-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 said in a statement to newsrooms Tuesday afternoon.
He says 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.
“In the interest of fairness, these reports or allegations – just like all the other the JSC receives- would be put to the candidate for his or her response, before the commission makes a determination on the suitability of the candidate.” He adds
According to Mutunga, the JSC discharged its mandate properly and completely in 2019 by recommending the appointment of 41 judges. He says the President is therefore 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.
“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 as he concluded his petition to the Head of State.
During last week’s appointments to superior courts, 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 Labor Court.