The Law Society of Kenya (LSK) has challenged the nomination of Zablon Moroka Mukwa as a judge at the East African Court of Justice (EACJ) arguing that the former chamber representative is not qualified for the position.
Mr Mukwa, who served as Member of the County Assembly (MCA) for the Bassey Central Ward in Kisii County from 2017 to 2022, was nominated on 18 April 2024, by the East African Community (EAC) Cabinet Secretary, Penina Malunza, as Kenya's candidate. for this position. Judge of the First Instance District of the Regional Court.
He is set to replace Justice Charles Nyachae, who resigned in January.
But LSK objected to his nomination arguing that he was not a jurist of recognized competence to be nominated as a judge and that the Judicial Service Commission, charged with appointing judges, was not involved in his nomination process.
“The third respondent (Mr Mokwa) does not meet the requisite qualifications to be nominated as a Judge of a High Court of Kenya and subsequently a Judge of the Trial Chamber of the East African Court of Justice,” LSK said in the petition.
Justice Chacha Mwita refused to stop the EAC Heads of State Summit from upholding the appointment, despite LSK's pleas that once he was appointed, the case would become invalid.
Prosecutor Justin Muturi challenged the High Court's jurisdiction to hear the case, arguing that the case should have been brought to the European Court of Justice.
The judge ordered the parties to submit their submissions before the hearing on June 21. The other parties named in the case are Ms Malunza, the East African Law Society and the Judicial Services Commission.
Mr. Mokua says in his bio that he is Managing Partner and Head of Litigation at Zablon Mokua & Company Advocates. He is also a pastor in the Pentecostal Mission Church in Kenya.
LSK maintained that CS Malonza had no mandate or constitutional authority to nominate a judge for appointment.
According to LSK, it is the Judicial Services Commission that has the power to determine the suitability and eligibility of a person worthy of nomination as a judge.
The court was told that Mr Mokwa did not meet the minimum qualification requirements as a judge of a superior court, in particular the Supreme Court, which is equivalent to the Trial Chamber of the EACJ.
To be eligible to become a judge, a person must have the requisite experience regardless of whether that experience was acquired in Kenya or in another Commonwealth jurisdiction.
The candidate must have at least ten years' experience as a professionally qualified High Court Judge or Magistrate or at least ten years' experience as a distinguished academic or legal practitioner or such experience in another relevant area of law.
Furthermore, LSK said the nomination process of Mr. Mokwa was shrouded in secrecy thus making a mockery of national values and principles of rule of law, people’s participation, inclusion, equality, protection of the marginalized, transparency and accountability.
“By surreptitiously selecting the third defendant (Mr Mukwa) as Kenya’s candidate for the position of judge of the First Instance of the East African Court of Justice, the first and second defendants (Prosecutor and CS Malonza, respectively) denied that other qualified Kenyans have an opportunity to apply,” LSK said. themselves for recruitment in a competitive manner.
The LSK asserted that the Supreme Court had powers to decide the matter because the EAC Treaty does not specifically grant jurisdiction to the EACJ in a dispute relating to the nomination of a judge to the Court.
“Instead, under Article 24(1) of the EAC Treaty, the nomination of judges to the East African Court of Justice is a matter that falls within the scope of the EAC Partner States and, as such, the matter itself is guided by the Constitution of And the law of partner countries.”
