Bernice Mbugua @BerniceMuhindi
Attorney General Kihara Kariuki has asked the court to dismiss a petition filed by Judicial Service Commission (JSC) challenging the constitutionality of Section 7 of the Salaries and Remuneration Commission (SRC) Act.
JSC is challenging the section, which was amended to require that a nominating body forwards names of two persons from which the president shall nominate and forward one name to the National Assembly for vetting and approval to the SRC.
JSC said the president relied on the section to decline to appoint Jacqueline Akinyi as their nominee to the salaries commission.
The AG, however, wants the petition dismissed, saying JSC did not disclose any violation of the constitution or any written law.
“The petitioner mistakenly reads Article 230 in isolation of article 250(4) which provides that appointments to commissions and independent offices shall take into account the principle that the composition of the commission and independent offices are taken as a whole,” said Senior litigation counsel Thande Kuria, for the Attorney General, in court documents.
“The petition should be dismissed because the petitioners have not disclosed with clarity and precision which Articles of the Constitution have been breached by the enactments of amendments to the SRC Act,” he added.
JSC in its petition had argued that the said section is unconstitutional as it violates Article 230(2) (b) of the Constitution which provides that SRC consists of, among others, “one person each nominated by the following bodies which are not members or employees of those bodies”.
The AG, however, argued that every Act of Parliament enjoys a presumption of unconstitutionality and the petitioners have not rebutted that presumption to warrant the invalidation of the amendment to the SRC Act.
The AG said the amended law was to ensure that the nominees to SRC meet the constitutional requirements on composition.
Head of Public Service Joseph Kinyua had told JSC through a letter to the Chief Justice its nominee would not be appointed unless they complied with Section 7 of the SRC Act.