Uhuru has no right to control who succeeds Mutunga as chief justice

Chief Justice Willy Mutunga. The argument that the President is a rubber-stamp of Parliament misconceives the intention of the framers of the Constitution that in appointing the chief justice, the President is acting as Head of State not of government. FILE PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • The MPs argue that the President should be given a list of three names from which to appoint a chief justice.
  • If the losing candidates are already judges, they can go back to their regular judicial jobs but this might also complicate their relationship with the new CJ.
  • It is much harder to see why an outsider should accept legislative prying into their personal affairs given the very real possibility of not getting the job.

Parliament’s decision to amend the Judicial Services Act to change the way the Chief Justice is appointed is both dangerous and an egregious affront to the Constitution.

It also rests on a confusion regarding the dual roles of the President as Head of Government and as Head of State.

The MPs argue that the President should be given a list of three names from which to appoint a chief justice.

This seemingly plausible argument says that when the President is given only one name, he is, in effect, a mere rubber stamp.

This argument has many flaws.

First, it flies in the face of the clear language of the Constitution on how the chief justice and his deputy are to be appointed.

Second, it is infirm as a matter of procedure having been passed without complying with the Constitution’s transparency guarantees and public participation.

Third, it is flagrantly partisan and is clearly intended to give the President the legal tool to politically vet the next CJ.

Finally, its long-term effect will be to discourage good candidates from competing for the position.

First, let’s deal with the spurious argument that the President should not be a rubber stamp of Parliament.

This is ridiculous and misconceives both the nature of the appointment process and the structure of executive power under the Constitution.

The process of appointing the CJ is divided into three: A technical interview and assessment conducted by the Judicial Service Commission to establish suitability.

A confirmatory political process done by Parliament to confer popular legitimacy on the selected candidate and, finally, a formal component that gives legal imprimatur to the appointment, which is vested in the President as Head of State.

It is this last component that is at the heart of the legislative confusion that led to the amendment.

In limiting the powers of the President to what seems merely ceremonial, the Constitution has made a sharp distinction between the President’s powers as Head of Government and his powers as Head of State.

As Head of Government, the President has a broad sweep of efficient and effective powers but as Head of State his powers are ceremonial and are primarily intended to confer legality on actions taken by others.

To understand this, look at the United Kingdom.

Under UK constitutional law, executive powers are split: The prime minister holds executive power as head of government whilst the Queen exercises ceremonial head of state powers.

Legally speaking, the Queen appoints the prime minister, cabinet ministers, declares war, assents to all laws and is the commander in chief of the armed forces.

Politically, these decisions are made by the PM but those decisions have no legal force without the involvement of the Queen.

The argument that the President is a rubber-stamp of Parliament misconceives the intention of the framers of the Constitution that in appointing the chief justice, the President is acting as Head of State not of government.

This is why, like the Queen, he is given no discretion whatsoever to determine the suitability of any person for the position.

The legal infirmity lies in the fact that by giving the President discretion on the matter, this amendment fundamentally changes the system the Constitution created.

Secondly, this law was enacted by stealth and deception. The deception lies in burying the amendment amidst the clutter of a Statute Law Miscellaneous Amendment Bill, increasingly a tool much favoured by Parliament when it wants to do some legislative cheating.

Unfortunately, this approach is barred by the Constitution and has already been ruled unacceptable by the High Court, in the Constituency Development Fund (CDF) case.

When laws are enacted, transparency and public participation are obligatory. If the public is excluded, the law is incurably defective and must fail for breaching the process as required.

The relevant articles in our Constitution were borrowed from the South African Constitution which also makes public participation in law-making mandatory.

As stated by the South African Constitutional Court in the case of Doctors for Life International v Speaker of the National Assembly and Others, Parliament has a duty to genuinely consider public views.

In the CDF case, the High Court adopted this view and said that where the Constitution prescribes a procedure to be followed in enacting a law, that procedure must be followed.

Though recognising that actual levels of participation must inevitably vary from case to case, nonetheless, the High Court was unequivocal: “It must be clear, upon examination of the legislative process, that a reasonable level of participation has been afforded to the public.”

Sneaking in legislation under a miscellaneous amendment law that deals with a host of other legislative issues neither satisfies the transparency guarantees nor creates room for public scrutiny.

Where, as here the issue at stake — the appointment of CJ — is so fundamental to the scheme of checks and balances built into the Constitution, it is imperative to follow the process ordained by the Constitution.

Given that Parliament was itself a party to the CDF decision, it is clear what we have here is a deliberate act of disobedience.

Thirdly, there is political mischief written all over this amendment. Chief Justice Willy Mutunga’s tenure is coming to an end soon and the names of candidates to replace him are already in the air.

This amendment is blatantly and obviously the President’s legal tool for vetting his successor, a power he lacks under the system as designed.

In the US, the President appoints federal judges who are then scrutinised by Congress.

Unlike our system, the US system has an in-built “litmus test”: the President can assess and determine — before he makes the appointment — whether his nominee is likely to be friendly to his political positions.

Thus, a pro-choice president will want to know how a prospective judge has ruled on abortion. Of course this does not always work.

Famously, President Dwight Eisenhower, a Republican, appointed Supreme Court Chief Justice Earl Warren believing him conservative and sympathetic to “Republican causes”.
To the chagrin of conservatives, Warren then presided over the most liberal period in the history of the Supreme Court.

Notwithstanding, the occasional Earl Warren mistake, more often than not, the American system gives the President significant leeway to find somebody whose philosophy he agrees with.

In contrast, the process in Kenya was designed to avoid precisely this risk of politicising judicial appointments. For this reason, the role of politicians is extremely constrained.

Strictly speaking, there really are only two ways of getting a chief justice the President likes; by influencing JSC or by expanding the choice available to the President, as proposed in this amendment.

Unfortunately, the composition of JSC is pre-determined and the President can appoint only two of its 11 commissioners.

This is what explains this amendment: lacking the power to shape the JSC choice, the President wants the power to choose the most preferable out of a triplet.

Finally, this amendment will, inevitably discourage good people from seeking the post.

There is something disreputably voyeuristic in Parliament seeking to scrutinise the personal lives of three candidates, two of whom will certainly not be chief justice.

If the losing candidates are already judges, they can go back to their regular judicial jobs but this might also complicate their relationship with the new CJ.

It is much harder to see why an outsider should accept legislative prying into their personal affairs given the very real possibility of not getting the job.

The trick would be to create an impression of unsuitability during the approval hearings for the disfavoured candidates whilst giving the preferred one an easy ride.

As we saw during the approval hearings for the Central Bank of Kenya Governor Patrick Njoroge, there are no depths that MPs will not plumb.

They even succeeded in making it sound as if being a bachelor and giving away one’s salary is somehow dishonourable.

This law, like many anti-constitutional laws of the recent past, points to a serious and deep-seated problem in the psyche of the President and Parliament.

They have both convinced themselves that their failure to deliver on their promises arises from the shackles placed on them by the Constitution. And that should make Kenyans very afraid.

The writer is a constitutional lawyer