The High Court has declared the nomination of Zablon Muruka Mokua as a judge at the East African Court of Justice (EACJ) unconstitutional, marking a significant legal development in the country’s judicial system. In a ruling delivered by Justice Chacha Mwita, the court emphasized that Mokua’s nomination did not meet the requirements outlined in the Treaty Establishing the East African Community (EAC), particularly Article 24. The judgment highlighted the crucial role of the Judicial Service Commission (JSC) in vetting and assessing candidates for judicial appointments, noting that its involvement is mandatory.
The Law Society of Kenya (LSK) had filed a petition challenging Mokua’s nomination, arguing that the process violated both the Constitution and the Treaty. The LSK contended that the Cabinet Secretary (CS) for East African Community Affairs, Peninah Malonza, had overstepped her mandate in nominating Mokua for the position of EACJ judge. According to the LSK, only the JSC is authorized to recommend judicial appointments, and Mokua’s selection lacked the proper vetting procedures.
Mokua, who had previously served as the Member of County Assembly (MCA) for Basi Ward, was nominated on April 18, 2024, by CS Malonza to replace Justice Charles Nyachae, who resigned from the position earlier in the year. However, the LSK contended that Mokua did not meet the requisite qualifications to serve as a judge of a superior court in Kenya, let alone in the First Instance Division of the EACJ.
Further compounding the controversy, the LSK argued that the nomination process was conducted in secrecy, undermining the principles of transparency, inclusivity, and public participation. By not ensuring a fair and competitive process, the nomination denied other qualified individuals the opportunity to be considered for the prestigious position. The LSK also pointed out that such secrecy went against national values, including accountability and the rule of law.
In his ruling, Justice Mwita concurred with these arguments, declaring that Mokua’s nomination was in violation of the law. The judgment serves as a reminder of the importance of upholding constitutional principles in judicial appointments, particularly in institutions like the East African Court of Justice, which plays a crucial role in the legal landscape of the region.
The court’s decision has now raised questions about the future of Mokua’s appointment and the broader transparency of the judicial nomination process in Kenya. The ruling is likely to have significant implications for how future appointments to the EACJ and other judicial bodies are handled.
