By Claire Wanja/Statement
The High Court has certified as urgent a case challenging a new law empowering the President to nominate the Chief Justice.
High Court Judge Justice George Odunga ordered that the case be heard inter parties (both parties) on 13th January 2016 during the High Court vacation.
Justice Odunga further directed LSK to serve the Respondents (Attorney General and National Assembly) with the suit papers before close of business tomorrow.
“Both parties should be heard on 13th January as there is no possibility that the recruitment of the Chief Justice and his Deputy will be done within the next seven days,” Justice Odunga said.
The Law Society of Kenya (LSK) moved to court under a certificate of urgency through lawyers Senior Counsel Nzamba Kitonga, Prof. Tom Ojienda, Mr. Michael Muchemi and Mr. Peter Wanyama.
LSK argued that the matter be certified as urgent and disposed of on priority basis as the National Assembly had passed into law the Statute Law (Miscellaneous Amendment) Act 2015.
The Act contains amendments to Section 30(3) of the Judicial Service Act 2011 that seeks to take away powers of the JSC to appoint the Chief Justice or Deputy Chief Justice.
LSK further argued that the positions of both the CJ and DCJ are about to be vacant, hence, absolutely important that the question of constitutionality of Section 30(3) of the JSC Act 2011 be determined urgently.
In its 12 page petition, the LSK is seeking for a declaration that Article 166(1)(a) of the Constitution does not require that the Judicial Service Commission (JSC) submits to the President three names for appointment to the position of Chief Justice or Deputy Chief Justice.
It is also seeking a declaration that in accordance with provisions of Article 166(1)(a) of the Constitution, the Judicial Service Commission (JSC) is mandated to submit only one name for appointment to the position of Chief Justice or Deputy Chief Justice.
The LSK is also, among others, seeking a declaration that in accordance to provisions 259(11) of the Constitution, the President is bound by the recommendation of the JSC made under Article 166(1) of the Constitution.