What you need to know:
- The President has since sworn in 34 of the judges while one died in a road accident and six have been rejected.
- This has set off an explosion of protests from the Twitter punditry, retired jurists and activists, of which the legal fraternity has an ample supply.
Democracy takes place in the middle — not on the purist extreme or the opposite, more intermingled, end. Democracy is compromise and negotiation. Even in an election, one side prefers a certain candidate and the other a different candidate. The argument is settled by allowing the majority to make the call.
The dispute over the appointment of judges to the High Court and the Court of Appeal has been simmering for months with occasional magmatic explosions of contestation. The Judicial Service Commission conducted the recruitment of 41 judges in July and August 2019 and forwarded the list to President Kenyatta for appointment. It included 11 nominees to the Court of Appeal, 20 to the Environment and Land Court and 10 to the Employment and Labour Relations Court.
President Kenyatta, however, declined to appoint the nominees, arguing through Head of Civil Service Joseph Kinyua that some of the judges had integrity issues. Chief Registrar of Judiciary Anne Amadi said she received a letter without specifics and details from the National Intelligence Service raising concerns about the suitability of some of the shortlisted individuals. But the JSC decided not to act on it, saying, there wasn’t enough information for the candidates to respond to.
The President has since sworn in 34 of the judges while one died in a road accident and six have been rejected. He argued in public that he was privy to information regarding the nominees, which he couldn’t overlook. This has set off an explosion of protests from the Twitter punditry, retired jurists and activists, of which the legal fraternity has an ample supply.
The argument of the legal industry — scholars, retired judges, civil society members, lawyers and others who trade in the law, as well as many well-meaning members of the public — is simple: The Constitution, the supreme law of the land, gives the President no authority whatsoever to choose who can or cannot become a judge. He is, in the wisdom of our Constitution, an expensive rubber stamp, whose only function in the appointments is to ceremonially adorn the will of the JSC.
Contribution of the Executive
On the other hand, the forces of the Executive are pointing to the President’s rather pointed remarks: He has intelligence information which he could not overlook. What could that information be? Equally, they are asking: If you did not want the Executive to have a meaningful role in this whole thing, why not identify, interview and swear in judges in the Chief Justice’s drawing room? Is the contribution of the Executive merely that of an empty procedural imprimatur?
For the average discerning Kenyan, when you strip away the ancient English and the swagger that comes with the monopoly of violence, this is a contest over who, or what institution, has the power and which one doesn’t. When you strip away the expensive robes, this is an argument between two groups of Sadducees and Pharisees, mouthing tracts of text that they have learnt like the Ethiopian Eunuch but with which they have no spiritual congress. It has nothing to do with “we, the people” but about those two groups and the temples they have erected to the gods of power that they venerate.
The interest of Kenyans is the appointment of judges who are not lazy, crazy, corrupt or venal; it is for decent, hardworking, moral, faithful, just, fair and honourable men and women to sit in judgment of the disputes that we take to the courts. The Constitution is not our god; neither are we its servants. It’s an instrument of good government and must deliver.
Willy Mutunga, the former Chief Justice whose ticking off of the President has caught the popular imagination, is not just a retired judge and jurist. He’s also a radical thinker, scholar, nationalist, canny political ideologue, sapere and savant whose passion and consistency in the human rights struggle sets him apart from the rest. When he presided over the Supreme Court, it stood on a mountain of moral authority.
David Maraga, Dr Mutunga’s successor, did not come to office with the latter’s gilded reputation or lofty scholarly accomplishments but his decisions have won him many fans. He presided over a Supreme Court whose moral authority had been weathered to a gentle hill by a rancorous public opinion and its operations, but he and his predecessor should help the country to beat a path to a solution.
Fighting institutions are of little use to the people. Cooperate, compromise, collaborate, find a solution. That could start with an examination of the Executive’s delegation in the JSC and how it can play a more effective role in background-checking.