Roles and Functions
Not long after the promulgation of the New Constitution, the JSC was instrumental in the hiring of new Judges and especially those of the new Supreme Court of Kenya. Excerpts from Article 166:
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 (b) all other judges, in accordance with the recommendation of the Judicial Service Commission.
In November 2012, the JSC conducted the recruitment of a new Deputy Chief Justice and recommended the appointment of Appeal Court Justice Kalpana Rawal to replace Nancy Baraza:
172. (1) The Judicial Service Commission shall ....... — (a) recommend to the President persons for appointment as judges;
The meaning in Article 172.(1) with respect to routine appointment of judges became the subject of debate in late June 2014 when the Law Society of Kenya questioned the President's act of omission in appointing just 11 out of 25 Judges that had been recruited by the Commission in January of the same year. The lawyers' body also questioned the long delay in the appointments. The President in turn averred that the appointment was a 'process' saying, “The process of appointing the remaining 14 is still ongoing and the President will give his approval or disapproval once it comes to an end.”
Seemingly, the President was not done (on his desire to have a say) in the so-called 'process' of appointments of Judges - and especially the CJ and the DCJ positions - for in December 2015, he signed into law, The Statute Law (Miscellaneous Amendments) Bill 2015, containing an amendment to the JSC Act 2011 that would henceforth require the Commission to forward to him three names (and not one name only as before) when recruiting for appointment to either of the positions of Chief Justice or Deputy Chief Justice. The Statute Law (Miscellaneous Amendments) Bill 2015:
Section 30 of the JSC Act (No. 1 of 2011). Delete subsection (3) and substitute therefore the following-
(3) The provisions of this section shall apply to the appointment of the Chief Justice and Deputy Chief Justice except that- (a) the Secretary shall, ....... forward the names of three qualified persons for each vacant position to the President.
With regard to delays in appointments, however, the amendments did place fixed timelines to the recruitment 'process' that the Commission, the President and the National Assembly have to adhere to:
30. (3) (a) the Secretary shall, within three days of the Commission’s vote, forward the names of three qualified persons for each vacant position to the President; (b) the President shall, within fourteen days of receipt of the names forwarded select the person to fill the each vacant position and forward the name of the person to the National Assembly for approval; (c) the National Assembly shall, within twenty-one days of the day it next sits after receipt of the name of a person nominated for appointment to the post of Chief Justice or Deputy Chief Justice vet and consider the person; (d) where the National Assembly approves of the appointment of a person to the post of Chief Justice or Deputy Chief Justice, the Speaker of the National Assembly shall forward the name of the person to the President for appointment; (e) where the National Assembly rejects the nomination of a person for appointment to the post of Chief Justice or Deputy Chief Justice, the Speaker shall within three days communicate its decision to the President and request the President to submit a fresh nomination; (f) where a nominee is rejected by the National Assembly the President shall within seven days, submit to the National Assembly a fresh nomination from amongst the three persons shortlisted and forwarded by the Commission under paragraph (a);and (g) if the National Assembly rejects all of the subsequent nominees submitted by the President for approval the Commission shall constitute a different selection panel and conduct the
recruitment afresh. (emphasis provided).
The JSC is also expected to actively participate in the recruitment of persons to hold the office of Kadhi in the Judiciary:
170. (2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless the person— (b) ....... as qualifies the person, in the opinion of the Judicial Service Commission, to hold a Kadhi’s court.
