Appellate court backs Warsame appointment to JSC minus vetting by National Assembly MPs

The Court of Appeal has endorsed the re-election and appointment of appellate judge Mohamed Warsame as an automatic member of the Judicial Service Commission (JSC) for a second time without vetting by the National Assembly.

The second highest court in the land yesterday confirmed findings made on July 6, last year by High Court Judge Chacha Mwita that Justice Warsame did not require fresh interrogation by the National Assembly.

A three-judge Bench dismissed an appeal by the Attorney General challenging the invalidation of President Uhuru Kenyatta’s purported nomination of the judge and forwarding his name to the National Assembly for fresh vetting. Warsame was elected by Court of Appeal judges on March 9, last year to represent them before the top judicial body.

“A permanent injunction is hereby issued prohibiting the National Assembly from vetting or approving Justice Warsame as a member of the JSC,” Justice Chacha Mwita had said following twin petitions by the Law Society of Kenya and activist Samuel Njuguna.

“I am satisfied that the first petition by the LSK raises a genuine constitutional grievance in so far as there was an attempt to subject an elected member of the JSC to approval by the National Assembly contrary to the constitutional edict. However, I am not satisfied that there is any constitutional invalidity with regard to Section 15 (2) of the Judicial Service Act which does not require compulsory approval of JSC commissioners,” Justice Mwita said.

“A declaration is hereby issued that Justice Warsame, having been elected by judges of the Court of Appeal as a member of the JSC in accordance with Article 171 (2) as read with Section 16 of the Judicial Service Act, is not subject to approval by the National assembly under Article 250 (2) of the Constitution,” he said.

In their ruling on Friday, appellate judges Philip Waki, Asike-Makhandia and Fatuma Sichale said Article 132 of the Constitution creates room for the President to perform some duties as the Head of State “which is a noble thing under a constitutional democracy”.

“One of the noble tasks given to the President is to make State and public appointments, even when he has no other role to play in the process of appointments. We have already endorsed the construction placed on Section 15 (2) of the Judicial Service Act by the High Court that the President’s duty is simply to appoint an elected commissioner within three days of submission of the nominee’s name,” the Bench held.

EDS/MK/011/010/019