Judges refused appointment suffer ‘unlawful discrimination’ says Kenyan high court

The blunt refusal of Kenya’s President Uhuru Kenyatta to appoint or promote six judges of the more than 40 recommended during 2019 by the Judicial Service Commission, has unleashed a storm of ligitation, with human rights and constitutional groups determined that the law should intervene to give effect to the JSC decision.

The latest in that litigation is a petition decided last week by three judges of the high court, after it was brought by a Kenyan doctor, Benjamin Magare. The judges held that certain of Magare’s petitions couldn’t be decided at this stage as they had already been determined by another bench or were up for appeal. It was, however, appropriate to resolve his petition on the question of whether the six nominees were treated differently from the rest of the 40, in a way that amounted to unlawful discrimination. They were indeed unlawfully discriminated against, said the judges, and moreover the six had a legitimate expectation that they would have been appointed, along with the rest of those recommended by the JSC.

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Three high court judges have decided a new round of litigation in the ongoing problem caused by President Uhuru Kenyatta’s refusal to appoint or promote six judges from among 40 named by the Judicial Service Commission (JSC). It’s a scandal that has been dragging along since 2019, still without any end in sight.

The new legal action was brought by a surgeon, Dr Benjamin Magare, against the Chief Justice and the Attorney General, with 14 named ‘interested parties’ including the six judges not appointed or promoted, the JSC, the International Commission of Jurists and the Kenya Human Rights Commission.

In the introduction to their decision, the three judges noted that the JSC had recommended 41 people to the president for appointment as judges in 2019, but that the president had not made all the appointments.

Failure

The court then outlined the history of the litigation that followed, brought in an attempt to have all the appointments made, on the basis that the president was ‘constitutionally bound’ by the recommendation of the JSC and that the president’s failure to appoint them all violated the constitution and the Judicial Service Act.

Despite the court orders made so far, declaring him duty bound to appoint the six judges, the president left out the six when he gazetted the rest of the appointees, and a further judgment was delivered in October 2021, directing the president to appoint the remaining six as judges within 14 days. The court added that if the six were not appointed during that period, the six nominees would be ‘deemed duly appointed’ and the Chief Justice would be free to take the steps necessary to swear in the six judges herself.

The latest litigation, now finalised, amalgamated two separate additional petitions. Like some of the previous actions, it sought a declaration that the president’s gazetting of a partial list of judges to be appointed was unconstitutional, invalid, null and void. To correct this problem, the litigant urged that the court should issue a declaration deeming the six to have been duly appointed.

This, and several other of the orders sought by the applicants were considered by the court in the new case. However, the judges said that in their view, some of these petitions had already been decided in earlier court cases.

Degradation

There were, however, a couple of new issues, uncanvassed in previous cases. One requested a declaration that the presidential action in leaving the six off the list of judges gazetted, contrary to court rulings, amounted to ‘discrimination and degradation of their dignity’ and violated the constitution in this respect.

Similarly, the petition sought a declaration from the court that the six had been ‘condemned unheard’ by the president in his refusal to appoint them, and that this was contrary to the constitution’s fair administrative action provisions.

The three judges hearing the latest action said that they agreed the six nominees ‘were treated differently from the other nominees, and that that amounted to discrimination.’

Legitimate expectation

‘We take the view that the president is bound by the national values and principles’ in the constitution. The six were not accorded fair administrative actions. Further, ‘it is our finding that, having been nominated and recommended’ by the JSC for appointment to the respective courts, ‘the six nominees had a legitimate expectation’ of appointment.

As to the argument that the six should be compensated for the financial loss they have experienced through not being appointed, the court said that each of the six ought to testify to prove the damage suffered by them individually through the violation of their rights.

Though Magare, pleading on their behalf, said they had suffered psychological and other forms of trauma because of their non-appointment, he had not provided any evidence proving the damage and/or suffering of the six, ‘and therefore, this court, without specific proof of what each has suffered, is unable to make any pronouncement on compensation.’

On the issue of costs for the litigation, however, the court said as it was a constitutional petition for the enforcement of legitimate rights on behalf of the public, it would not be in the interests of constitutionalism to order that the petitioner pay all the costs, and that each party should bear their own costs.

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