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Why CJ Koome wants Uhuru impeached

Chief Justice Martha Koome wants the Appeal Court to declare that President Uhuru Kenyatta has violated the Constitution by failing to appoint six of the 40 judges nominated by the Judicial Service Commission (JSC) three years ago.

The CJ also wants the court to declare that the solution for the alleged violation is an impeachment of the President from office. In an appeal against a High Court judgment that directed the Mr Kenyatta to appoint the six judges and if he fails the CJ takes over the function, Ms Koome has additionally declined to side-step the President by playing his role.

Instead, she has proposed for a declaration that the President has violated Articles 3(1) and 166(1)(b) of the Constitution or any other order that secures direct accountability of the President.

“It is proposed that the court makes a declaration that the President… is in violation of Articles 3(1) and 166(1)(b) of the Constitution. A declaration that the appropriate remedy for the violation of Articles 3(1) and 166(1)(b) of the Constitution is impeachment of the President or any other order that secures direct accountability of the President,” she says in the court papers.

However, even if the appellate court declares the President has violated the Constitution, the proposed impeachment may not go through since it is a long legal process and the President is eight weeks away from end of his term. In addition, Parliament has since adjourned indefinitely for the August 9 General Election.

The Constitution in Article145—on the removal of President by impeachment—provides that the impeachment motion moved by a member of the National Assembly must be supported by at least a third of all the members (232 MPs). CJ Koome alleges that the President has violated Articles 3(1) which states that “every person has an obligation to respect, uphold and defend this Constitution”.

The other provision that she alleges Mr Kenyatta has violated is Article 166(1)(b), which states that “the President shall appoint all other judges, in accordance with the recommendation of the Judicial Service Commission”.

The basis of the CJ’s proposal is Mr Kenyatta’s decision to decline to appoint the six judges to the High Court and the Court of Appeal as recommended by the JSC.

In turning down the recommendation for the appointment of the six nominees, the President cited an adverse National Intelligence Service (NIS) brief. He said they are tainted.

The judges at the centre of the legal tussle are Justices George Odunga, Aggrey Muchelule, Prof Joel Ngugi and Weldon Korir whom the JSC had elevated to the Court of Appeal. The others are chief magistrate Evans Makori and High Court deputy registrar Judith Omange—promoted to be High Court judges.