JURIST - Paper Chase: Kenya high court rules judicial appointments unconstitutional

[JURIST] Kenya's High Court of Nairobi [official website] ruled Thursday that recent judicial nominations by President Mwai Kibaki [official profile; JURIST news archive] are unconstitutional, halting parliament's approval proceedings. Agreeing with an earlier pronouncement [JURIST report] by Prime Minister Raila Odinga [Guardian profile; JURIST news archive], Justice Daniel Musinga ruled in favor of eight advocacy groups, largely devoted to women's rights, which alleged that recent appointments violated promises of equality. Musinga found that Kibaki's appointments violated Article 27(3) of the constitution [text, PDF], which states, "[w]omen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres." Musinga declared that the error lied in Kibaki not consulting Odinga and other officials enough in the appointment process. The Office of Public Communications [official website] released a statement [text] following the announcement of the ruling: "President Kibaki and Prime Minister Raila Odinga had held extensive consultations prior to the announcement of the names on Friday evening." Although the High Court is the final arbiter on matters of constitutional interpretation, Musinga stated [Capital News], "unless the Speaker points out the unconstitutionality of such debates then the court cannot sit back and allow such violation." The Legislative Speaker of Parliament [official website], Kenneth Marende, was expected to rule [Reuters Africa] on the issue Thursday, but declined and directed the issue to two committees [speaker's ruling, PDF]. The Justice and Legal Affairs committee and Finance Planning and Trade committee will research and deliberate on the issue, and announce their decision next week.

Kenya ratified its new constitution [JURIST report] in August, as part of a reform movement aimed at curbing vast presidential powers. Kenya's new constitution includes numerous checks on presidential authority, among which are the creation of a supreme court and senate. The new constitution was approved by popular referendum, which took place amid concerns that high turnout and heated debate over the referendum could cause a repeat of the violence seen during the country's presidential election [JURIST reports] in 2007. The government is now expected to start implementing the new constitution, which could take as long as five years. This document has been received as one of the most significant events in Kenya since its independence.