Retired Chief Justice David Maraga has declared President Uhuru Kenyatta should have been impeached for violating the Constitution, even as the High Court directed the Head of State to explain his selective appointment of judges.
Justice Maraga, who left office in January this year, said Parliament should have taken steps to remove the President from office for violating the Constitution by failing to appoint the 41 judges nominated two years ago.
He disclosed that before leaving office, he had been furnished with the list of nominated judges that President Kenyatta did not want to appoint on allegations they are tainted.
Justice Maraga, however, said he was surprised last week because the names of the six judges that the President omitted are different from the ones that were rejected then.
"The names have changed and they are different. Some names have been added and others removed. Those who were said to have issues have been appointed and others removed from the list. If it was a bona-fide allegation why the shift or why change the list?" Justice Maraga posed.
High Court judges Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir were recommended for promotion to the Court of Appeal but the president rejected their nomination.
Justices Ngugi and Odunga were in the five-judge High Court bench that declared the president's Building Bridges Initiative constitution reforms illegal.
The other two are a magistrate and a deputy registrar who were supposed to be promoted to High Court judge.
Yesterday, Justice Maraga observed that Justices Ngugi and Odunga could have found their way into the rejection list because of their decision on the BBI case.
"It is common knowledge proponents of the BBI are not happy. Their rejection (of Ngugi and Odunga) could be due to that judgment," he noted.
The retired CJ said when he was in office there were suggestions from the executive to swear-in some of the 40 judges and leave those who were said to be tainted. He said he refused because he was not furnished with particulars of the adverse reports gathered against the nominees that were not wanted.
"If I allowed that I would have violated the Constitution and given the President liberty to violate the Constitution and set a bad precedent. He would have gotten a free hand to choose," he stated.
He said by rejecting the six judges, the President has ruined their careers and their family lives.
Justice Maraga spoke a day after his predecessor Willy Mutunga also attacked the President for failing to appoint six judges recommended by the Judicial Service Commission (JSC), instead swearing-in 34 judicial officers. One has since died.
Justice Maraga stated that President's impeachment would be the only way to bring order into the country.
"If this kind of act (violation of the Constitution) is allowed to continue we are descending to a banana republic," Justice Maraga said in an interview with a local television station.
Yesterday, the High Court directed President Kenyatta to file his response to a petition lodged by a lobby group, Katiba Institute, challenging the selective appointment of judges.
The three-judge bench led by Justice James Wakiaga told President Kenyatta's lawyer, Mr Waweru Gatonye, to file the response within 10 days following complaints by the lobby group that the President has been deploying delaying tactics.
The court heard that since the petition was filed in June last year, President Kenyatta's lawyer adopted a strategic mechanism to delay the hearing and determination of the case through filing of various applications and failure to file the substantive response to the petition.
Through lawyer Dudley Ochiel, the non-government organisation said to date, the President's lawyer is yet to file the response despite being ordered by the court to do so three times.
The High Court gave the directions after Katiba Institute abandoned its application to stop the CJ and the JSC from assigning duties to the 34 judges appointed last week by the President.
Chief Justice Martha Koome and the JSC had already filed their grounds of opposition to the application.
Justice Maraga poured cold water on President Kenyatta's BBI arguing although the March 2018 truce between the President and his main challenger in the disputed 2017 presidential vote, Mr Raila Odinga, was good, it failed to address electoral fraud.
The former CJ said the deal popularly known as the 'handshake' killed the Opposition, giving the President 'audacity to do what he wants'.