President Uhuru Kenyatta's delay in appointing Court of Appeal Judge Mohamed Warsame to the Judicial Service Commission (JSC), is causing murmurs in the judiciary.
The High Court last month cleared the path for Justice Warsame's appointment after it declared that the National Assembly had no role in his appointment as a commissioner.
However, a month after the judgement, the President has not gazetted the judge's appointment. The Law Society of Kenya (LSK) now says it will return to court to seek orders compelling the President to appoint the judge.
Under the JSC Act, the President has only three days to make the appointments after receiving the names by the nominating bodies.
The High Court made its determination on July 6, and the State did not appeal hence there is nothing holding the President from appointing Justice Warsame.
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This has raised concerns that President Kenyatta is disobeying court orders. Acting State House spokesperson Kanze Dena said on Friday the fact that the President had "delayed in making the appointment is not an indication that he has refused."
Many JSC commissioners have interpreted the president's indecision as a blatant disregard of the order of the court.
Matters have not been helped by the cut in the Judiciary's budget by Sh13.4 billion.
"This is a war against the Judiciary. Somebody is revisiting," a serving commissioner, who didn't want to be named for fear of reprisals told Sunday Nation, referring to the remarks made by members of the Jubilee administration at the height of the fallout following the annulment of President Kenyatta's win in last year's elections.
"The failure to swear in the four commissioners is impairing the work of the commission," said another JSC member.
Just like Justice Warsame, former Kenyatta University Vice Chancellor Olive Mugenda, former Agriculture Cabinet Secretary Felix Koskei and former Clerk of the National Assembly Patrick Gichohi survived a scare when the high court ruled their appointments to JSC were within the law.
But whereas the three were appointed by the President through a notice in the Kenya Gazette dated March 2, 2018, Justice Warsame has been left in abeyance.
The source revealed that the serving commissioners had taken the position that the CJ should not swear in Ms Mugenda, Mr Gichohi and Mr Koskei until Justice Warsame is appointed.
LSK has demanded that court orders be respected. "We are taking this matter very seriously because it makes no sense to us.
We have an order but it cannot be effected," LSK president Allen Gichuhi said, adding the JSC and the Judiciary were under attack.
Justice Warsame was re-elected to the JSC by his Court of Appeal colleagues.
However, his nomination flew into headwinds when the National Assembly insisted that he could only be appointed to serve after vetting and approval by the House.
The Judiciary and LSK rejected the position adopted by the National Assembly saying it contravenes the law.
Katiba Institute also challenged the appointment of the other three commissioners arguing it was unconstitutional.
Justice Enoch Chacha Mwita agreed with the Judiciary position noting that the National Assembly had no role in the matter because judge Warsame had been elected by his peers.
"Subjecting persons duly elected by peers as required by the law to approval by the National Assembly will not only expose them to ridicule, possible political patronage and horse-trading, but would defeat the spirit of the Constitution," Justice Mwita ruled.
In an interview with NTV, Chief Justice David Maraga spoke of how the Judiciary was at the mercy of the Treasury.