The Supreme Court Rules That Vetting Of Elected JSC Members Is Not Required

On Friday morning, the Supreme Court ruled that elected members of the Judicial Service Commission do not need to be vetted and approved by the National Assembly.

A five-judge bench of the court ruled that only those Commissioners of the JSC who have a constitutional obligation for vetting before appointment must be approved by Parliament. The court also ruled that section 15(2) of the JSC Act is unconstitutional because it gives the President the authority to appoint elected and nominated members of the JSC.

“Section 15(2) violates the letter and spirit of Articles 1(3) and 2(2), which require that sovereign power delegated to State organs be exercised strictly in accordance with the Constitution and that no one may claim or exercise State authority except as authorized by the Constitution.”

In her dissenting opinion, however, Justice Njoki Ndungu disagreed with four of her colleagues. She stated that the elected members of the JSC should be vetted and approved because State officers (including all JSC Commissioners) require parliamentary approval. To begin, to check the President’s appointment powers, and to ensure that members nominated to serve as State officers meet the integrity test outlined in Chapter Six of the Constitution.

According to Justice Njoki, after approval by Parliament, the President has the authority to appoint members of the Judicial Service Commission in accordance with Articles 132(4), 248 and 250(2) of the Constitution.