Kenya has nominated Dr Zablon Muruka Mokua to the East African Court of Justice to replace Justice Charles Nyachae who resigned in January.
But the nomination has been queried by the regional Bar, who cite contravention of Kenyan national laws.
The East African Law Society (EALS) and the Law Society Kenya have questioned the qualification the East Africa Community Minister Peninah Malonza followed to send the name to the Council of Ministers for approval, pending appointment by the Summit of Heads of State.
They argue that Dr Mokua did not meet the criteria for appointment as a judge of the High Court of Kenya according to the Constitution.
“We are concerned with the nature of the appointment and also about the procedure that has been used to make this particular appointment,” said David Sigano, President of the EALS.
“Appointing a judge to the EACJ is equivalent to appointing a judge to the High Court of Kenya. There is a clear procedure on what needs to be done before you can get someone into that position.”
“The question is; was he nominated through the JSC of Kenya? We would want the courts to interpret the matter as per our Constitution, and not leave it to the EACJ,” said Faith Adhiambo, LSK president.
In a letter dated April 18, EAC Cabinet Secretary Malonza wrote to the EAC Secretary-General nominating Dr Mokua to replace Justice Nyachae.
“Following the voluntary resignation of Justice Charles Ayacko Nyachae as a Judge of the EACJ with effect from 8th January 2024, Kenya hereby nominates Dr Zablon Muruka Mokua for appointment to the First Division of the EACJ. The purpose of this letter, therefore, is to request that you transmit the name of the nominee to the Summit.”
It was not clear if it was the Judicial Service Commission or the President who had forwarded the name to her ministry, though she admitted that Dr Mokua’s name was not on the list proposed by the JSC, but was quick to say Kenya did not flout the provisions of the Treaty.
“The Treaty has given authority and responsibility of appointment of a judge to the EACJ to the head of state,” she said. “We also have to follow the EAC Staff Rules and Regulations, which are not necessarily in harmony with those of Kenya.” The EALS wants the nominee to first be nominated by the JSC, then interviewed publicly how appointment of Kenyan judges is carried out.
“This is not someone we’ve seen practise law to a level that will give everyone confidence that he is the right appointee to the regional court or a court of the calibre of the EACJ,” Mr Sigano said.
“And with this nomination for consideration for appointment, we feel that that procedure has been violated or has not been followed and we intend to follow up with the Judicial Service of Kenya, the office of the Attorney-General as well as the Ministry of EAC Affairs.”
In his curriculum vitae, Dr Mokua says he is managing partner and head of litigation at Zablon Mokua & Company Advocates. He served as a Member of the County Assembly (MCA) for Basi Central ward in Kisii County from 2017 to 2022.
Dr Mokua is also a pastor at the Pentecostal Mission Church-Kenya.
Mr Sigano warned that the nomination could end up like that of Sauda Mjasiri of Tanzania.
The EALS argued that the nomination of Justice Mjasiri was “shrouded in secrecy and did not involve other important stakeholders to make the process transparent and credible.” Justice Mjasiri was appointed to replace Justice Edward Rutakangwa on February 13, 2019, sparking a legal battle between the EALS and the EAC.
Pan-African Lawyers Union CEO Donald Deya said he would discuss the matter with the Kenyan government.
“After the Constitution of Kenya, 2010, all processes are supposed to be based on merit, transparent, accountable, fair, and there is supposed to be equality. We had hoped that we would start with quiet diplomacy to discuss this matter with the government,” he said.
