REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL, HUMAN RIGHTS AND JUDICIAL REVIEW DIVISIONS PETITION NO. 314 OF 2016 (CONSOLIDATED WITH PETITION NO. 314 OF 2016 AND JR NO. 306 OF 2016) (CORAM: ODUNGA, J) BETWEEN TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE…………………………………….……..……….1ST PETITIONER ARNOLD MAGINA ………….……………………………2ND PETITIONER YASH PAL GHAI…………………………………………..3RD PETITIONER SAMWEL MOHOCHI…………………………………….4TH PETITIONER VERSUS JUDICIAL SERVICE COMMISSION………….…...1ST RESPONDENT THE ATTORNEY GENERAL……………………..….2ND RESPONDENT AND THE LAW SOCIETY OF KENYA……..…………INTERESTED PARTY AND ARTICLE 19-EASTERN AFRICA……………………..AMICUS CURIAE JUDGEMENT Introduction 1. The 1stPetitioner herein, the Trusted Society of Human Rights Alliance, is described as a duly registered Human Rights Society Judgment -Petition 324 of 2016 (Consolidated with Pet. 324 of 2016 and JR 306 OF 2016) Page 1 of 247 within the Republic of Kenya with the mandate of protection of constitutionalism, the rule of law, democracy and human rights. 2. The 2nd Petitioner, Arnold Magina, is an advocate of the High Court of Kenya pursuing a Master of Laws Degree at the University of Nairobi. 3. The 3rd Petitioner, Yash Pal Ghai, is a Kenyan citizen and a retired professor of law and former Chairperson of the Constitution of Kenya Review Commission. 4. The 4th Petitioner, Samwel Mohochi,isa Kenyan citizen and advocate of the High Court of Kenya. 5. The 1stRespondent, the Judicial Service Commission, (also hereinafter referred to as “the Commission” or “the JSC”) is a Constitutional Commission established under Articles 171 and 248(2)(e) of the Constitution. It is also a corporate body under Article 253 of the Constitution capable of suing and being sued and is, pursuant to Article 172 of the Constitution, constitutionally charged with promoting and facilitating the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice including recommending to the President persons for Judgment -Petition 324 of 2016 (Consolidated with Pet. 324 of 2016 and JR 306 OF 2016) Page 2 of 247 appointment as Chief Justice, Deputy Chief Justice and Judges of the superior courts. 6. The 2ndRespondent, the Attorney General(hereinafter referred to as “the AG”), is the chief government legal adviser, sued pursuant to Article 156 of the Constitution of Kenya on behalf of the Government of Kenya. 7. The interested party, the Law Society of Kenya, is a professional body established under the Law Society of Kenya Act Chapter 18 of the Laws of Kenya, charged with the responsibility of overseeing the practice of law in Kenya and mandated to advice the public and the Government in respect of legal and constitutional matters. 8. The amicus curiae, Article 19-East Africa, describes itself as an international human rights organization which defends and promotes freedom of expression and access on information around the world involved in monitoring, researching, publishing, lobbying, campaigning, setting standards; and conducting strategic litigation for the promotion of the right to freedom of expression. 9. What provoked these proceedings which were on 22nd July, 2016 consolidated for the purposes of expeditious hearing, was the decision of the Commission to commence the recruitment of suitable persons Judgment -Petition 324 of 2016 (Consolidated with Pet. 324 of 2016 and JR 306 OF 2016) Page 3 of 247 for the positions of the Chief Justice, the Deputy Chief Justice and a Judge of the Supreme Court of Kenya. 1st Petitioner’s Case 10. According to the 1st Petitioner, on the 16th June 2016 the Commission advertised vacancies in the positions of the Chief Justice (CJ) and Deputy Chief Justice (DCJ) and a Judge of the Supreme Court of Kenya for the Judiciary of the Republic of Kenya pursuant to which interested applicants had up to the 6th of July, 2016 to submit their applications. This deadline was however extended up to the 8thJuly, 2016 for the reason, the media disclosed, that there was a public holiday falling in between. 11. It was pleaded by the 1st Petitioner that in the said advertisements, the Commission enumerated a raft of qualifications both in the Constitution and outside the Constitution of Kenya including clearance from Higher Education Loans Board for beneficiaries and non- beneficiaries, Kenya Revenue Authority, Directorate of Criminal Investigations, Advocates Complaints Commission, Ethics and Anti- Corruption Commission and a recognized Credit Reference Bureau. 12. According to the 1st Petitioner, whereas the Constitution in Articles 10,73 and 166(3) has set the qualifications for the positions in question, Judgment -Petition 324 of 2016 (Consolidated with Pet. 324 of 2016 and JR 306 OF 2016) Page 4 of 247 malice, impunity and greed drove the respondents to oust the provisions of the Constitution and instead set criteria unknown to the law. As a result, the respondents shortlisted candidates for the 3 positions and in so doing, left one the name of Prof Jackton Boma Ojwang, one of the serving Judges of the Supreme Court, unlike some Judges in the Court of Appeal and the High Court. This, according to the 1st Petitioner, was without any reason being advanced for the said omission. Apart from the said Judge, a former court of appeal judge who serves also in a regional Court Justice Aaron Ringera, a respected jurist and scholar, was similarly not shortlisted. It was therefore contended that candidates with solid credentials were knocked out at the short listing stage rendering the remaining predetermined process a mockery of the intelligence of Kenyans hence setting a dangerous precedent by allowing a few individuals in the Commission to impose their friends in the Judiciary of the Republic of Kenya. By so doing, it was contended that the rule of law and constitutionalism ad been overthrown by the respondents. It was averred that majority of the commissioners of the Commission owe allegiance to some political leaning and have earmarked candidates for Judgment -Petition 324 of 2016 (Consolidated with Pet. 324 of 2016 and JR 306 OF 2016) Page 5 of 247 the three slots and that the process is a white wash for a predetermined outcome. 13. It was pleaded that Kenyans were not made aware of the circumstances under which the requirements outside the Constitution were set, hence the decision by the respondents to include other qualifications not stipulated in the Constitution is unconstitutional and ultra vires. To the 1st Petitioner, this action served to favour preferred candidates hence robbing Kenyans of judicial independence as anticipated by the Constitution of Kenya. In addition, the process of recruitment for the 3 positions was rushed to shield it from public scrutiny, yet the current constitutional setup has no room for such discrimination and blatant disregard of the rule of law as provided for under Article 10 of the Constitution. 14. It was averred that the Commission’s decision to provide for additional qualifications for the positions violated the Constitution in that it failed to appreciate the provisions of Article 27 of the Constitution of Kenya by discriminating against applicants who did not get Higher Education Loans Board; it prescribed additional qualifications which are not provided for in the law; it blatantly disregarded well laid down Judgment -Petition 324 of 2016 (Consolidated with Pet. 324 of 2016 and JR 306 OF 2016) Page 6 of 247 provisions of the law; it amounted to arbitrary action; it abrogated the Constitution; and it set the stage for the manipulation of the judiciary. 15. It was averred that the Constitution guarantees the right to equal protection and benefit from the law, freedom from discrimination, and right to administrative action which ought to be respected and protected and provides in Article 10 for national values of the rule of law, transparency and accountability. 16. To the 1st Petitioner, Kenyans have a right to information in public offices including the criteria used for short listing candidates for the positions of Chief Justice, Deputy Chief Justice and Supreme Court Justices; Minutes of the persons/meeting that came up with the rules for short listing and comprehensive minutes for the short listing of the three positions while Article 73 provides for respect for public offices as well as inspiration of public confidence in public offices. Further, Article 172(2) of the Constitution of Kenya decrees that the 1st respondent shall be guided by competitiveness and transparent processes of appointment of judicial officers and staff. 17. The 2nd Respondent was accused of having allowed the Constitution of the Republic of Kenya to be denigrated. Judgment -Petition 324 of 2016 (Consolidated with Pet. 324 of 2016 and JR 306 OF 2016) Page 7 of 247 18. In the 1st Petitioner’s view, the judiciary is the bastion for the rule of law, constitutionalism and human rights and must observe the same. Further, Articles 47 and 48 of the same Constitution guarantees fair administrative action and the right to access to justice to all the citizens of the Republic of Kenya. In support of its submissions, the 1st Petitioner relied on Article 166(3) of the Constitution of Kenya, Part V of the First Schedule to the Judicial Services Act, 2011(hereinafter referred to as “the Act”) which sets out the criteria for evaluating qualifications of individual applicants. 19. It was submitted that the Commission is required to adhere to the provisions of Article 172(2) of the Constitution which requires it to be guided by competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary and the promotion of gender equality. To the 1st Petitioner, the short listing stage is a very critical one in the recruitment process and the highest degree of transparency ought to be exhibited. Whereas in that process, the Commission exercises discretion in short listing the Applicants, the parameters of exercise of that discretion has been defined by regulation 13.