Kenyatta-Maraga contest designed in precolonial Kenya

On June 8, 2020, on the Supreme Court steps, the Chief Justice (CJ) addressed the shortage of judges and the resulting near paralysis of court operations. He warned that Kenyans should expect a backlog of cases and congested court diaries owing to the few numbers of judges currently serving in various courts. The CJ unequivocally singled out the president as responsible for the chaos for refusing to appoint the 41 judges that the Judicial Service Commission (JSC) recommended mid last year.

It is perhaps characteristic of the deterioration of goodwill between the two arms of government that the CJ finds it necessary to address the country periodically on the Judiciary’s disagreements with the Executive. Last year, he did so to defend the judiciary’s budgetary allocation. He was adamant that an underfunded judiciary would be incapable of performing its constitutional functions. The Executive’s actions, he found, threatened the rule of law.

This time, he was still concerned over the state of the rule of law in the country albeit regarding a more straightforward subject altogether. An understaffed judiciary is essentially an impotent institution. It is incapable of administering justice; its distilled function under the Constitution.

To illustrate, the CJ warned that for some courts, such as the Environment and Land Court, petitioners would only be able to get court dates in 2022. This is in flagrant disregard of the principles on which judicial authority is exercised. Consider article 159 (2) which provides that in the exercise of judicial authority, the courts shall be guided by the principle that justice shall not be delayed.

The Executive’s reply was swift. The Attorney General (AG), in a press conference, insisted that the President was not a mere rubber stamp for the JSC. He made it clear that the Executive does not believe that the Constitution intended that the president must agree to the recommendations of the JSC especially where effecting such recommendations would undermine constitutional values.

The reason for this stance, the AG explained, was that among those the JSC had recommended were “persons with a questionable record”. He said that “His Excellency the President would therefore not be expected to abdicate his role as the Head of State and Government to appoint them in the solemn role of judge”.

The law on the matter

The court disagrees with the Executive’s position as stated by the AG. It has in fact disagreed with the Executive on multiple occasions. In 2014, the Law Society of Kenya (LSK) petitioned the High Court on similar grounds. On the January 11, 2014, the JSC submitted to the president a list containing 25 names of persons to be appointed as judges of the High Court of Kenya.

Prior to the recommendation of the 25 persons by the JSC, it had interviewed the proposed appointees and received reports on their competence and integrity. It also received favourable reports on their integrity from the Kenya Revenue Authority, Kenya Police-Criminal Investigation Department, the Ethics and Anti-Corruption Commission, the Credit Reference Bureau and the National Intelligence Service. In addition, the Commission invited members of the public with any relevant information to come forward with it.

Upon completion of the vetting process, the JSC decided that out of the 76 persons who had been interviewed, the said 25 persons were fit and proper persons to be appointed as judges of the High Court of Kenya and therefore forwarded their names to the President for formal appointment, swearing-in as judges, and gazettement.

However, upon receipt of the list on January 11, 2014, the president refused or neglected to appoint the 25 for over 5 months until June 27, 2014 when he appointed, swore-in and gazetted only 11 as judges. While appointing the 11 persons as judges, the president stated that the appointment of the remaining 14 was still being “processed” and was subject to “approval” and or “disapproval” in due course.

The petitioners, LSK, argued that under the Constitution, the president has no other function other than that of appointing the persons that the JSC recommended to him. The president has no role in “processing”, “approving” or “disapproving” the appointment of judges as that role belongs exclusively to the JSC.

The AG then, Prof Githu Muigai, disagreed with the petitioners and made the same argument in court that the current AG is making today. He relied on a Canadian court decision which found that the term “recommendation” used in article 166 of the Constitution should not be taken to mean a binding decision. 

Moreover, he argued, if the drafters of the Constitution had intended for the president to be bound by the recommendations of the JSC, the Constitution would have said so in no uncertain terms. Therefore, the AG claimed, the position that the president has a mandatory constitutional duty to appoint, swear in, and gazette the names recommended even when there are other compelling reasons known to the president to reject or disregard the same is not well founded in the Constitution and in law.

The Court disagreed with the AG. It found that the president had a mandatory constitutional duty to appoint, swear-in and gazette the recommended persons without unreasonable delay upon the submission by the JSC of names. Refusal to do so, would be unconstitutional.

The Court went on to find that the president is not mandated to conduct any process to approve or disapprove of the recommended persons. In fact, such a process, where it is purportedly conducted, is unconstitutional and therefore null and void ab initio (from its inception).

A historical look into article 166

How, one might ask, did the Court come to that conclusion? The answer is found from paragraph 46 of the decision where the Court delved into an exposition of the historical background of article 166. The reason for this is the Constitution’s own pronouncement under article 259 that it ought to be interpreted in a manner that promotes its purposes, values and principles.

To understand its “purposes, values, and principles”, the Supreme Court found that interpretation ought to take into account the “agonised history attending Kenya’s constitutional reform”. It was therefore the Court’s view in this case, that the constitutional provisions dealing with the Judiciary are “partly steeped in historical context” and could only be understood within their historical context.

From its inception, the Judiciary in Kenya was an extension of the Executive. Dr Peter Kwenjera, scholar and new Dean of the Strathmore Law School, explains in his PhD thesis that the colonial judiciary was established to advance economic and imperial ends. The Commissioner of the Protectorate could suspend a judge at will. The judges’ tenure was durante beneplacito – at will. Judicial independence was a myth and the Executive wielded strong influence over the judges.

After independence, the Executive inherited the bad habits of the colonisers. Colonial institutions carried over to the independent State dictated that the Executive exercised power over the Judiciary and choked its independence.

The Judiciary itself was a sub-department of the Office of the AG who was considered senior to the CJ. It was only in 1989 that the Judiciary was removed from under the Office of the AG and listed as the 28th department of the Kenyan government.

Since independence, every constitutional amendment aimed at expanding the powers of the Executive. The Executive became a sort of vacuum power, which like a vacuum cleaner sucked all the powers that had been given to Parliament, independent commissions, etc.

The Constitution of Kenya (Amendment) Act of 1969 (The 1969 Constitution), gave the President unlimited power in appointing the CJ and other judges. In doing away with the judges’ right of appeal to the Judiciary Committee of the Privy Council, judges were no longer insulated from executive interference as their tenure was dependent on the Executive’s will.

The JSC was composed fully of the president’s appointees. The CJ, AG, Chairman of the PSC, and two judges from among the Puisne and Judges of Appeal. Other judges could be appointed by the President upon the recommendation of the JSC. Sadly, it became synonymous to a department in the Office of the President. Appointment and removal of judges was wholly at the president’s discretion.

The 24th amendment to the 1969 Constitution effectively removed the judges’ security of tenure. They at that point, served purely at the will of the president. The reinstation of the judges’ security of tenure through the 25th amendment though celebrated, was nevertheless viewed as nugatory due to the Executive’s absolute powers over the Judiciary, and the president still maintained de facto power of removal. 

I still remember how the late Justice William Mbaya told me that his driver, official car and office keys were taken from him, and he was physically followed by two policemen, day and night, until he gave up and resigned.

By the time the multiparty era dawned on us, the Judiciary was, in the words of Dr Kwenjera, self-examining and auto-reflecting. The bleak judicial history that oversaw gross violations of rights and injustice informed an uncompromising need for judicial independence and the separation of powers to restore dignity to the much-slighted arm of government.

The selection and appointment of judges and their security of tenure was to be placed beyond the Executive’s reach. The only remnant of the historical far-reaching Executive in the new JSC was the Attorney General and perhaps the two members of the public appointed by the President.

The process of selection, appointment, and removal would be clearly defined, publicly declared, and would ensure appointment on a meritocratic basis. The chapter on the Judiciary in the new Constitution reflects this.

The promulgation of the Constitution in 2010 was a true transformational moment in the judicial history of Kenya. Judicial reform in previous years (1952 -1964) and (1980s – the mid 1990s) whittled down the Judiciary’s capacity to check the Executive’s arbitrary power. The new Constitution changed that. It is quite worrying that we seem to be going back to the immediate post-independence trend of amending the Constitution to increase presidential powers and reduce the ability of the Judiciary to check arbitrary power.

A direct consequence of the Judiciary’s transformation was judicial independence. 

Institutional history

The President might be genuinely concerned about the integrity of judges he is admitting into office. Indeed, article 166(2)(c) dictates that judges be of high moral character, integrity, and impartiality. This is a necessary corollary considering the power and independence they are expected to wield.

High moral character demands honesty, judicial morality, freedom from vices, fraud, deceit and falsehood. It is a question of propriety which Dr Kwenjera explains is beyond legality. To ensure that the persons appointed are beyond reproach is vital. However, and this is critical, it is not the function of the President. In fact, if the Executive purported to do so, the act would be entirely unconstitutional.

If at all the president has reservations about the calibre of people being considered for office, the right place to voice those concerns is in the JSC through its public consultation process, and through the AG that sits in the JSC.

After the work of vetting is done, the president’s role is ceremonial and is not and was never intended to be some sort of separate and distinct second vetting process.  To turn the argument of both the current and former AG on its head, had the Constitution intended for the president to have a separate and distinct right of veto or right to vet, it would have said so explicitly.

The president is bound by the Constitution. The relevant provision was decided on by the Court in 2014 and there is no ambiguity here.  But the president should also feel constrained by the history of this country and the history of judicial capture which informed how the 2010 Constitution was drafted in relation to the Judiciary.

This explains the Court’s consistent insistence on multiple occasions, including last year when Adrian Njenga moved to court to compel the president to appoint the recommended judges. The court’s decision in this case affirmed the 2014 one and ordered the president to perform his constitutional mandate.

The fears of the CJ today transcend what might seem to be the inconveniences of an understaffed judiciary. They concern the rule of law and the sanctity of the Judiciary. Regression is easy. To compromise the reforms that took the Judiciary away from the Executive’s clinching hold is to compromise the its independence and will take us back to very dark days, when this country was run at the whim of one mighty presidency, which is, after all, what Nigerian scholar Benjamin Obbi Nwabueze characterises as the imperial nature of the African presidency.

It is urgent for the two principals to meet and discuss this matter and reason together, far from the public eye. The president and the Chief Justice have the great responsibility of realising the constitutional promise. Their legacy may be hanging on the urgency of this discussion.

This article is part of a long series of articles on the rule of law in the context of politics and ethics. The views expressed here are personal and do not represent institutional views. The series is researched and co-authored by:

• Karim Anjarwalla, Managing Partner of ALN Anjarwalla & Khanna, Advocates
• Wandia Musyimi, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Kasyoka Mutunga, Research Associate at ALN Anjarwalla & Khanna, Advocates
• Prof Luis Franceschi, Senior Director, Governance & Peace, The Commonwealth, London