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{
    "id": 1121408,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1121408/?format=api",
    "text_counter": 153,
    "type": "speech",
    "speaker_name": "Sen. Omogeni",
    "speaker_title": "",
    "speaker": {
        "id": 13219,
        "legal_name": "Erick Okong'o Mogeni",
        "slug": "erick-okongo-mogeni"
    },
    "content": "We made a comparison with the situation that prevails in one of our democracies in Africa; South Africa. We drew a distinction with what prevails there. Section 174 of the South African Constitution obligates the South African JSC to forward three names to the President for each vacant position. This is unlike what prevails in Kenya where the Constitution does not give room to the President to pick from three. The argument that we should send three names to the President has a very clear distinction when you compare the South African and the Kenyan constitutions. In Kenya, it tells the JSC to make a recommendation to the President then the President appoints. We also drew distinction with what prevails in India. In India, the Prime Minister has a discretion to reject, with reasons, a nominee that has been forwarded to him by the Chief Justice. The appointment in India is that the Chief Justice, with four senior most judges, sits down and makes recommendations to the Prime Minister. The Prime Minister by the provisions of the Indian Constitution can reject a nominee with reasons and return the name back to the Chief Justice to nominate another person. It seems that when Kenyans were enacting their new Constitution, 2010, they were very clear of what they wanted. The historical background could have contributed to that. The Kriegler Commission, Koffi Annan Report, Bomas Draft Constitution and the Committee of Experts had also made recommendation that we should have a Judiciary that is independent of the Executive. That is what informed Chapter 10 of the Constitution. Madam Temporary Speaker, having looked at all these issues, there are a number of problems we have identified. The first one is when we wrote to the Judicial Service Commission (JSC), they brought a letter to us to the effect that when they were in the process of conducting interviews, they received a letter from the National Intelligence Service (NIS) to the effect that a number of candidates had some integrity issues. When the JSC wrote back for details, they were never given. Therefore, they formed an opinion that it would be in violation of the Constitution, more so Article 47 on a Fair Administrative Action, to condemn the candidates who had applied to be appointed judges on allegations that had not been disclosed to the JSC and to the candidate, so that they are given an opportunity to respond to those allegations. They said that was contrary to the Bill of Rights which obligates every Kenyan to be given a fair hearing when faced with any accusations. Madam Temporary Speaker, this Committee recommends that the best practice should be that if there are any allegations facing any candidate, the most decent position should be that the office of the Attorney-General should have those allegations reduced into writing with specificity. The candidates are then confronted with those specific allegations and given an opportunity to respond. Since that was not done in this particular case, it is the conclusion of this Committee that it will be a violation of Article 47 to condemn candidates who had applied for this position without being confronted with those specific allegations and given an opportunity to respond. In fact, there is even a bigger problem. Four of these candidates are continuing to serve as members of the High Court of Kenya. The other two candidates are serving as magistrates in the Republic of Kenya. All these four candidates have not been confronted with any allegations warranting their removal before the JSC. We have made an observation that this is a fairly untidy situation because these members"
}