Bernice Mbugua @BerniceMuhindi
Law Society of Kenya (LSK) has asked court to order the Executive to clear the roadblock in Justice Mohammed Warsame’s nomination to the Judicial Service Commission (JSC).
LSK wants the court to restrain the Attorney General and National Assembly from interfering with Justice Warsame’s participation in the activities and functions of the commission.
According to LSK, Warsame was elected by the judges of the Court of Appeal as a member of the commission on March 9 and his name submitted to the President for formal appointment.
However, the President forwarded his name to the National Assembly for vetting and the Assembly purported to call for submission of memoranda and public views on his suitability to serve as a commissioner of JSC.
The matter was taken to court where it was ruled that Warsame’s appointment was not subject to approval by the National Assembly.
LSK claims five months after Warsame’s election and 60 days after the court’s judgement, the President has failed to appoint Warsame following his election as a member of JSC.
Through lawyer Lempaa Suyianka, LSK contends that the President’s omission to gazette Justice Warsame is a violation of the Constitution and could undermine the functions of the Judiciary and its independence.
“Failure to gazette Justice Warsame occasions great prejudice to LSK, the Court of Appeal, the said judge, the public, Constitution and the rule of law in general,” said Lempaa in court documents.
LSK contends that Warsame, who is serving his second term, is exempted by Section 40 of the Judicial Service Act 2011 from retaking the oath of office before assuming office as a member of JSC.
“The president’s inordinate delay in making the formal appointment of Warsame is offending the right to fair administrative action that is expeditious, efficient, and lawful and procedurally fair,” said LSK in court documents.
LSK also submits that the omission is meant to interfere with Justice Warsame’s status, function and public perception as an independent constitutional omission.
The lawyers’ body want the Attorney General compelled to appoint Warsame as a member of JSC within 48 hours of the court’s order or a declaration to be issued that Justice Warsame is deemed to have been duly elected.
Members of Parliaments had in April adopted a report blocking the appointment of Warsame to the commission.