High Court upholds Haji’s appointment as NIS boss

 

The High Court has dismissed a petition challenging the appointment of Noordin Haji as director general of the National Intelligence Service.

In a judgment delivered on March 12, Justice Lawrence Mugambi ruled that unresolved petitions seeking Haji's removal as Director of Public Prosecutions did not render him ineligible for the new position.

The nomination, approval and appointment of Haji complied with constitutional and statutory requirements, Justice Mugambi said, and that the court could not substitute its opinion for that of the National Assembly, which is constitutionally mandated to vet such appointments.

Haji had served as DPP since 2018 before his nomination to head the NIS. The court was informed that various state agencies, including the Ethics and Anti-Corruption Commission, had cleared him for appointment.

The petition was filed by Eliud Karanja Matindi in June 2023, shortly after Haji was appointed to lead the NIS following his resignation as DPP.

The petitioner argued that at the time of his nomination, there were several unresolved petitions before the Public Service Commission seeking Haji's removal from the DPP office on grounds of non-compliance with Chapter Six of the Constitution.

Matindi argued that Haji's appointment amounted to a violation of Article 73(2)(a) of the constitution.

Additionally, Haji was at the time the holder of an office declared by the constitution to be an independent office.

"Persons who hold a state/public office declared to be an independent office by the constitution or statute, are ineligible for nomination and/or appointment to another state/public office otherwise than after a public, competitive recruitment process,” the petition stated.

However, Justice Mugambi emphasised that the existence of unresolved petitions could not be used to disqualify a candidate in the absence of adverse findings by a competent tribunal.

"The fact that these were undetermined petitions meant that the veracity of the allegations remained untested and unproven," the judge said.

"The court cannot thus be asked to make conclusive findings barring the nomination, approval and appointment of the fifth respondent based on unsubstantiated allegations in petitions that were pending before the fourth respondent or even pending in the High Court."

The court further noted the Departmental Committee on Defence, Intelligence and Foreign Relations and the National Assembly were best placed to evaluate concerns raised during the approval process.

"It is the second respondent and fourth respondents who are vested with the requisite mandate to conduct the approval process are the ones best suited to evaluate each and every concern including the relevance and the weight to attach to complaints of integrity raised in such petitions," the judgment read.

Justice Mugambi also rejected arguments that Haji's nomination by the President, without a competitive recruitment process, violated the constitution.

The judge noted that neither the National Intelligence Service Act nor the Constitution imposes a duty on the President to conduct competitive recruitment for the position of director general.

"The only conditions placed on both the President and the National Assembly by the Act and the constitution are to ensure the person nominated meets the threshold of personal integrity, competence and suitability," the court held.

The petitioner had also raised concerns about public participation during the vetting process and the second respondent's alleged failure to seek information from the Public Service Commission about pending petitions.

The court found no evidence of procedural impropriety, irrationality or constitutional violation that would warrant interference.

The judge ordered each party to bear their own costs, describing the matter as public interest litigation.