Uhuru Appoint judges, Leaves Odunga, Joel Ngugi, and 4 others

[Denis Young]

The president can overrule the parliament and veto a bill. A bill never becomes law until he signs it. When the president vetoes a bill the parliament requires a super majority to overcome his veto. Once such a super majority is achieved in parliament, the law passes without requiring the president's signature.

If the framers of our constitution thought that the JSC can override a presidential veto, they should have put a mechanism to override such a veto. My point is that our president is not a ceremonial head of state and government.


Leta wrink. Give me a reference to a constution article or indeed law that obligates the president to appoint everyone recommended by the JSC.

Some posters above have told you that the president can overule the parliament. Sembuse the JSC?

I actually wanted to address this question in my reply to Mwalimu-G who has since vanished but thank you for asking directly.

When it comes to JSC, the opportunity to bring up evidence as to why a judge is unfit was during the interviews.

Think of the CJ interview which was publicly covered. That is the time.

The other option is to appoint and then constitute a tribunal to go after the specific judges you have a problem with.

Remember the JSC is constitutionally mandated to carry out this process as an independent body. The constitution does not envision a reverse gear, or a back and fourth process once the interviews are concluded and a list of judges sent to the president for appointment. The president cannot then purport to send back names to JSC once the interview process has concluded.

When you make reference to law making, in Article 115 of the constitution, the process is laid bare.

(1) Within fourteen days after receipt of a Bill, the President shall-- (Note the use of 'Shall' again)

(a) assent to the Bill; or
(b) refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill.

(2) If the President refers a Bill back for reconsideration, Parliament may, following the appropriate procedures under this Part -

(a) amend the Bill in light of the President’s reservations;
or
(b) pass the Bill a second time without amendment.

(3) If Parliament amendeds the Bill fully accommodating the President’s reservations, the appropriate Speaker shall re-submit it to the President for assent.
(4) Parliament, after considering the President’s reservations, may pass the Bill a second time, without amendment, or with amendments that do not fully accommodate the President’s reservations, by a vote supported--

(a) by two-thirds of members of the National Assembly;
and
(b) two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of the Senate.

(5) If Parliament has passed a Bill under clause (4)--

(a) the appropriate Speaker shall within seven days re-submit it to the President; and
(b) the President shall within seven days assent to the Bill.

(6) If the President does not assent to a Bill or refer it back within the period prescribed in clause (1), or assent to it under (5)(b), the Bill shall be taken to have been assented to on the expiry of that period.


As you can see, comparing law making and the mandate of JSC is like comparing apples and oranges. Can you cite anywhere in the constitution where the president, if he has issues with judges, can refer back those names back to the JSC as expressly stated for law making?


As for the reference you asked for in the law "that obligates the president to appoint everyone recommended by the JSC", I refer you to my reply to Mwalimu-G.

I may not be a constitutional expert but a simple reading of the constitution says the president SHALL! It is not a suggestion. "The word shall in any law is an imperative. It means this will be done."

According to Article 166 1b, it reads:-

Appointment of Chief Justice, Deputy Chief Justice and other judges. 166.

(1) The President shall appoint—

(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and

(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.


The process the JSC took to come up with the 41 judges is similar to that which they used to come up with the Chief Justice. As you can see in 1a, it is also a 'recommendation' but the president has no input except appointing. His role is ceremonial.

 

[wrongturn]

 

[Ubongo]

View attachment 36927

We should be very careful what we tweet....huyu na Pauline Njoroge wanakubushwa kila wakati.
Meanwhile..... swearing in ongoing.
Hii determination ya bbi ipite.... sijui kama ni ya mwananchi

 

[Clemens]

Widespread application of the labelling theory by the chattering folks.

 

[Montecarlo]

I may not be a constitutional expert but a simple reading of the constitution says the president SHALL! It is not a suggestion. "The word shall in any law is an imperative. It means this will be done."

According to Article 166 1b, it reads:-

Appointment of Chief Justice, Deputy Chief Justice and other judges. 166.

(1) The President shall appoint—

(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and

(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.


The process the JSC took to come up with the 41 judges is similar to that which they used to come up with the Chief Justice. As you can see in 1a, it is also a 'recommendation' but the president has no input except appointing. His role is ceremonial.

Don't bother. People interpret laws based on their bar and sitting room discussions then walk around screaming the same all over

 

[Denis Young]

Don't bother. People interpret laws based on their bar and sitting room discussions then walk around screaming the same all over

That I can wholeheartedly agree on.

 

[bigDog]

I actually wanted to address this question in my reply to Mwalimu-G who has since vanished but thank you for asking directly.

When it comes to JSC, the opportunity to bring up evidence as to why a judge is unfit was during the interviews.

Think of the CJ interview which was publicly covered. That is the time.

The other option is to appoint and then constitute a tribunal to go after the specific judges you have a problem with.

Remember the JSC is constitutionally mandated to carry out this process as an independent body. The constitution does not envision a reverse gear, or a back and fourth process once the interviews are concluded and a list of judges sent to the president for appointment. The president cannot then purport to send back names to JSC once the interview process has concluded.

When you make reference to law making, in Article 115 of the constitution, the process is laid bare.

(1) Within fourteen days after receipt of a Bill, the President shall-- (Note the use of 'Shall' again)

(a) assent to the Bill; or
(b) refer the Bill back to Parliament for reconsideration by Parliament, noting any reservations that the President has concerning the Bill.

(2) If the President refers a Bill back for reconsideration, Parliament may, following the appropriate procedures under this Part -

(a) amend the Bill in light of the President’s reservations;
or
(b) pass the Bill a second time without amendment.

(3) If Parliament amendeds the Bill fully accommodating the President’s reservations, the appropriate Speaker shall re-submit it to the President for assent.
(4) Parliament, after considering the President’s reservations, may pass the Bill a second time, without amendment, or with amendments that do not fully accommodate the President’s reservations, by a vote supported--

(a) by two-thirds of members of the National Assembly;
and
(b) two-thirds of the delegations in the Senate, if it is a Bill that requires the approval of the Senate.

(5) If Parliament has passed a Bill under clause (4)--

(a) the appropriate Speaker shall within seven days re-submit it to the President; and
(b) the President shall within seven days assent to the Bill.

(6) If the President does not assent to a Bill or refer it back within the period prescribed in clause (1), or assent to it under (5)(b), the Bill shall be taken to have been assented to on the expiry of that period.


As you can see, comparing law making and the mandate of JSC is like comparing apples and oranges. Can you cite anywhere in the constitution where the president, if he has issues with judges, can refer back those names back to the JSC as expressly stated for law making?


As for the reference you asked for in the law "that obligates the president to appoint everyone recommended by the JSC", I refer you to my reply to Mwalimu-G.

In your reply to Mwalimu, you quoted the word SHALL. Can it be interpreted to mean that the president can only appoint from the recommended list?

 

[Denis Young]

In your reply to Mwalimu, you quoted the word SHALL. Can it be interpreted to mean that the president can only appoint from the recommended list?

(1) The President shall appoint—

(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and

(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.

 

[bigDog]

(1) The President shall appoint—

(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and

(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.

This area is not my strongest. So, I can shed any more light than my opinion stated earlier. I could be wrong but I don't believe the president is a mere rubber stamp.

 

[Denis Young]

This area is not my strongest. So, I can shed any more light than my opinion stated earlier. I could be wrong but I don't believe the president is a mere rubber stamp.

Like I mentioned before, the constitution envisions this very problem. The first like I mentioned is during the interviews where anybody including the DCI, EACC and even the president can state their case against the judges. If found to be correct, the judge can be dropped.

The other is after appointment. Assume all the judges were appointed, what can the president do? A tribunal can be set up by the president to investigate the judge as provided in the constitution.

But Uhuru doesn't want to follow the law. Assume he refused to appoint the CJ, he could have crippled the Supreme Court. But because he needs the Supreme Court to be functional because of BBI he had no choice.

 

[wrongturn]

Like I mentioned before, the constitution envisions this very problem. The first like I mentioned is during the interviews where anybody including the DCI, EACC and even the president can state their case against the judges. If found to be correct, the judge can be dropped.

The other is after appointment. Assume all the judges were appointed, what can the president do? A tribunal can be set up by the president to investigate the judge as provided in the constitution.

But Uhuru doesn't want to follow the law. Assume he refused to appoint the CJ, he could have crippled the Supreme Court. But because he needs the Supreme Court to be functional because of BBI he had no choice.

yani bado uko hapo? the judges have already been sworn. If the framers of constitution envisioned uhuru to just rubber stamp, why send the names to him? why not make appointment automatic after jsc approval?

 

[Denis Young]

yani bado uko hapo? the judges have already been sworn. If the framers of constitution envisioned uhuru to just rubber stamp, why send the names to him? why not make appointment automatic after jsc approval?

The fact something has been done illegally doesn't mean the consequences won't arrive eventually. The wheels of justice run slow but eventually it catches up.

I have learnt not to care or worry too much about these kind of things.

When shit hits the fan because we allow the president to go rogue, it will hit me and it will hit you too and that is how hard lessons are taught.

 

[Montecarlo]

This area is not my strongest. So, I can shed any more light than my opinion stated earlier. I could be wrong but I don't believe the president is a mere rubber stamp.

Is he supposed to re-interview them or carry out a desk review of the recommended candidates?

 

[wrongturn]

Is he supposed to re-interview them or carry out a desk review of the recommended candidates?

na si amefanya desk review and send back 6 names, or what exactly did you want the president to do, all over the world , the 3 arms are never equal, they can never be, there's no way an appointed arm can be on level terms with elected ones.

 

[Montecarlo]

na si amefanya desk review and send back 6 names, or what exactly did you want the president to do, all over the world , the 3 arms are never equal, they can never be, there's no way an appointed arm can be on level terms with elected ones.

You think being elected makes the executive very special sio? Uhuru's issue is that he has been unable to buy the courts and if you look at his family's history, they have never obeyed a court order starting with banning on illegal poaching, drugs etcif he truly cared about Kenya there have been so many opportunities to show this BBI is not one of them. If you have senior relatives in government ask them one simple question....'what is the game plan?' you'll just wish you never argued with anyone defending a bastard