The High Court has ruled that the former president, Uhuru Kenyatta, violated the constitutional rights of several judicial nominees by failing to appoint them as judges despite their recommendations by the Judicial Service Commission (JSC) between August 2019 and June 2021.
In its ruling, the Judiciary of Kenya found that the refusal breached the petitioners’ rights after unproven claims were allegedly made questioning their suitability for office.
“A declaration is hereby issued that the State/Respondent, through the actions of the President, casting unsubstantiated aspersions, that the Petitioners were unfit to hold public office, thereby justifying the refusal or failure to appoint them as Judges, violated the Petitioners’ right to have their dignity respected and protected under Article 28 of the Constitution,” read part of the ruling.
Therefore, to compensate, the courts have awarded each petitioner Ksh 2.5 million in compensation and ordered the state to cover the costs of the case.
“To vindicate the Petitioners’ constitutional right to inherent human dignity under Article 28 and the right to fair administrative action under Article 47, compensation is hereby awarded of Kenya shillings two Million Five Hundred Thousand Shillings (Kshs.2,500,000/-) to each Petitioner,”
High Court Rules Against Uhuru Kenyatta
The court argued that the President is constitutionally bound by the recommendations of the JSC and has no mandate to review, reconsider, or decline to appoint the recommended persons.
“We find that the President has no mandate to review, reconsider, or decline to appoint persons recommended by the 1st Interested Party as judges. We also find that the delay by the President in appointing the persons recommended is unreasonable and unconstitutional,” read part of the statement.
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The judges added that the 22-month delay in appointing the petitioners was unreasonable and unconstitutional, and violated the petitioners’ rights. They noted that claims that the nominees were unfit were based on undisclosed intelligence reports, without providing any specific particulars or proof.
The court ruled that the failure to provide written reasons for the delay lacked transparency and violated constitutional requirements for fair administrative action.
Petition filed Against Uhuru Kenyatta
According to a petition filed on June 21, 2023, the petitioners argued that, although JSC recommended them for appointment to the Environment and Land Court and the Employment and Labour Relations Court on August 13, 2019, Uhuru did not appoint them until June 3, 2021.
“The Petitioners state that on 13th August 2019, the Judicial Service Commission (JSC) in line with Article 166(1)(b) of the Constitution, Section 30 of the Judicial Service Act and the First Schedule to the Judicial Service Act, recommended the appointment of the Petitioners as Judges of the Environment and Land Court and the Employment and Labour Relations Court to the President,” read part of the petition.
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They argued that the delay violated rights to equality, human dignity, and fair administrative action in accordance with the Constitution.
“Equally, he denied them the right to equal benefit of the law and enjoyment of their rights under Article 27 of the Constitution. In addition, the act of vilifying them in public on unsubstantiated allegations violated their rights under Articles 28 and 47 of the Constitution.”
In addition, the petitioners claimed that the President judged their character by suggesting they were unfit for office, based on undisclosed intelligence, without providing evidence.
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Such cases should be individually surcharges