Court declares nomination of Zablon Mokua to East African Court of Justice unconstitutional

The High Court has declared the nomination of Zablon Muruka Mokua as a judge at the East African Court of Justice unconstitutional.

In his judgment, Justice Chacha Mwita stated that Mokua's nomination did not meet the criteria outlined in Article 24 of the Treaty Establishing the East African Community, emphasizing that the Judicial Service Commission (JSC) must be involved in the assessment of any candidate for the EACJ.

The Law Society of Kenya (LSK) had moved to court to challenge Mokua's nomination, arguing that he did not qualify for the position.

Mokua, who previously served as Basi Ward Member of County Assembly (MCA), was nominated on April 18, 2024 by then East African Community (EAC) Cabinet Secretary (CS) Peninah Malonza to replace Justice Charles Nyachae, who resigned in early 2024.

According to the LSK, the CS has no authority to nominate a judge, as only the JSC is mandated to make such nominations.

“The third respondent (Mokua) does not meet the requisite qualifications to be nominated as a judge of a superior court in Kenya and subsequently as a judge of the East African Court of Justice’s First Instance Division,” LSK said in the petition.

Additionally, the LSK argued that Mokua’s nomination was conducted in secrecy, thereby violating national values and principles of governance, including the rule of law, public participation, inclusivity, transparency and accountability.

"By surreptitiously hand-picking the 3rd Respondent (Mr Mokua) as Kenya's nominee for the position of kludge of the First Instance Court of the East African Court of Justice, the 1st and 2nd respondents (Attorney General and CS Malonza, respectively) denied other qualified Kenyans an opportunity to offer themselves for appointment in a competitive manner," said LSK.