Court Throws Out Petition Challenging Noordin Haji’s NIS Appointment

The High Court of Kenya has dismissed a legal challenge that sought to nullify the appointment of Noordin Haji as Director General of the National Intelligence Service, affirming that the process followed constitutional and legal requirements.

In a judgment, Justice Lawrence Mugambi ruled that pending petitions seeking Haji’s removal from the office of Director of Public Prosecutions could not be used as grounds to invalidate his appointment to the intelligence agency’s top position.

The court concluded that the nomination, parliamentary vetting and eventual appointment of Haji complied with both statutory and constitutional provisions, noting that the judiciary could not replace the role of Parliament in determining the suitability of candidates for public office.

Court Rejects Claims Over Pending Petitions

The case was filed in June 2023 by Eliud Karanja Matindi shortly after Haji was appointed to head the intelligence service following his resignation as Director of Public Prosecutions.

Matindi argued that the appointment was unlawful because several complaints seeking Haji’s removal from office had been lodged before the Public Service Commission of Kenya.

The petitioner maintained that the unresolved petitions raised questions regarding Haji’s compliance with Chapter Six of the Constitution, which addresses leadership and integrity standards for public officials.

The legal challenge further claimed that the appointment violated Article 73(2)(a) of the Constitution and questioned whether a holder of an independent constitutional office could transition to another state position without undergoing a public recruitment process.

“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.

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Judge Finds Allegations Unproven

Justice Mugambi rejected the petitioner’s arguments, stressing that unresolved complaints alone could not automatically disqualify an individual from appointment to public office.

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

He further observed that courts cannot issue conclusive findings based solely on allegations contained in unresolved proceedings.

“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.”

Role of Parliament in Vetting Emphasized

The ruling also emphasized the role of Parliament in vetting the nominees for the higher offices as provided for in the Constitution.

According to the judgment, the vetting process conducted by the National Assembly and its Departmental Committee on Defence, Intelligence and Foreign Relations was the appropriate platform to examine integrity concerns raised against nominees.

“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 every concern, including the relevance and the weight to attach to complaints of integrity raised in such petitions,” the judgment read.

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No Need For Competitive Recruitment

The court also dealt with allegations that the President should have used a competitive recruitment process before appointing Haji.

Justice Mugambi ruled that there was no merit in the claim, saying that the Constitution and the National Intelligence Service Act did not require the President to use competitive recruitment for the appointment of the 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 ruled.

The petitioner had also claimed that the vetting process did not have sufficient public participation and that the relevant authorities did not seek information from the Public Service Commission regarding the pending petitions.

However, the court ruled that there was no violation of the law or the Constitution.

In wrapping up the case, Justice Mugambi ordered that each party should pay its own legal costs, as the case was litigation in the public interest.

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