Since the Constitution was promulgated in 2010, the Judicial Service Commission has exclusively exercised the mandate to declare vacancies, advertise, interview and recommend for appointment all judges of the Superior Court in Kenya.
The President’s role has been accepted as “ceremonial”: To formally appoint the judges and witness their swearing-in. This function is reserved for the President because of his important role as a symbol of national unity and Head of State.
It was President Mwai Kibaki who first tested the constitutional provisions on the appointment of judges when he picked Justice Alnashir Visram as Chief Justice in January 2011 without going through the JSC process. That decision, together with the decision to unilaterally appoint the Attorney-General and the Controller-General, was challenged in Petition No 16 of 2011 (CREAW & 7 Others v the Attorney-General).
The High Court declared the appointment unconstitutional. JSC subsequently undertook the process of advertising, interviewing and recommending another candidate. This is how Dr Willy Mutunga became the first CJ under the new Constitution.
Article 166, which sets out the process for the appointment of judges, was not litigated again until 2014 when, on January 11, the JSC submitted a list of 25 people to President Uhuru Kenyatta for appointment as judges. He failed to appoint them for more than five months until June 27, when he only appointed 11 of them, saying the others were still being “processed” and were subject to “approval” or “disapproval”.
The Law Society of Kenya filed a Constitutional Petition against the President and a five-judge bench decided as follows:
First, that upon the submission of names of persons recommended for appointment as judges by the JSC, the President is under a mandatory constitutional duty to appoint and swear in the persons without unreasonable delay and that a refusal to do so was unconstitutional.
Second, that upon the submission of such names, the President has no authority to conduct any process of approval or disapproval.
Third, that the delay by the President in appointing the persons recommended to him was unreasonable and, therefore, unconstitutional.
It is against this backdrop that the JSC submitted the names of 41 persons for appointment last year as Judges of the Court of Appeal; the Environment and Land Court and the Employment and Labour Relations Court. The President refused to appoint them.
This prompted lawyer Adrian Kamotho to sue the AG for orders that the President’s action was unconstitutional. JSC and LSK were enjoined in the case. The issue was exactly the same as that litigated in the 2015 suit.
In a companion case, Mr David Ngari and the International Economic Law Centre sought the opposite declaration: that the President’s power to appoint judges under Article 166 of the Constitution is not merely ceremonial and that he can decline to appoint and give written reasons under Article 135 of the Constitution.
This time the President, through Head of Public Service Joseph Kinyua, claimed he had adverse reports against some of the nominees and that he was unable to appoint them without violating the Constitution. He argued that he cannot be expected to be a “rubber-stamp” and appoint all persons recommended to him by the JSC without doing his own approval process.
A five-judge bench heard both cases and made three thorough-going declarations: First, that the President is constitutionally bound by JSC’s recommendation and does not have any authority to subject such persons to any other “vetting” process.
Second, that failure to appoint the recommended persons violates the Constitution and the Judicial Service Act.
And, third, that the continued delay to appoint the persons recommended as judges is a violation of Articles 2(1), 3(1), 10, 73(1)(a), 131(2)(a), 166(1), 172(1)(a) and 249(2) of the Constitution. Regarding Mr Ngari’s petition, the Court dismissed it in its entirety.
The AG has filed a Notice of Appeal but has not sought any orders of stay of execution, meaning that the judgment as delivered is “operative”.
It is, therefore, legally accurate to say that the President is in a continuing grave violation of the Constitution every day he does not appoint the judges.
What should one make of the President’s argument that he has a duty not to appoint people of “questionable” character even if recommended by the JSC?
The constitutional design thought of this mischief and provided for it. First, the President has four appointees in the JSC: The AG, the Public Service Commission nominee and two members representing the public. Through these appointees, and especially the AG, the President has a means to raise any information he has against or in favour of any candidate. In this case, all these four appointees sat in the interviewing panel.
Second, the President can facilitate the conveyance of any adverse information on a candidate through the agencies that provide confidential information. These include the National Intelligence Service (NIS) and the Ethics and Anti-Corruption Commission.
In this case, the JSC wrote to the NIS asking for any information it had on all the shortlisted applicants. The NIS wrote back to the JSC stating it had “received” adverse reports against some of the applicants.
The July 5, 2019 letter did not state whether it had assessed the “adverse” information and found it to be credible. Neither were any particulars of the alleged adverse reports provided to the JSC.
The JSC wrote to the NIS requesting particulars of the adverse report so that it could give an opportunity to the affected candidates to respond. The NIS declined, saying it had “discharged” its obligation in its first letter. In the circumstances, the JSC was unable to rely on the sparse information from the NIS. To do so would have amounted to giving the NIS the veto power in the appointment of judges.
The President has two options if he has credible adverse information on a candidate for the office of a judge. First, he can cause that information to be confidentially relayed to the JSC during its evaluation of the candidates. This will enable the JSC to design a process for the candidate to respond.
Second, if the information is not considered by the JSC during the interviewing process or it becomes known after the interviewing process, the President has to play his constitutional role in the appointment process and then put in motion the removal process envisaged in Article 168 of the Constitution.
The continued refusal to appoint the judges has a debilitating effect on the work on the Judiciary.
Sadly, it’s wananchi who continue to suffer. For example, the Court of Appeal is operating at 50 per cent of its capacity: It has 15 active judges out of 30. Some COA stations – Kisumu, Nyeri and Mombasa – have altogether shut down for lack of judges.
It is important to point out that it was the present Attorney-General, Mr Kihara Kariuki, who, as COA President, wrote to the JSC on May 23, 2017 requesting the recruitment of at least six judges given the heavy caseload.
Since then, the Court has lost six more judges to retirement and death. He’s now telling us the Court does not need any more judges?
The Covid-19 pandemic has only made the situation worse. Courts are no longer able to process as many cases as before. The war against case backlog, which CJ David Maraga was virtually winning only a few months ago, is now in total disarray.
Mr Muchiri is the Communications Director in the Office of the Chief Justice.
