Sunduzwayo Madise
27 May 2016
Today’s
Daily Nation of Kenya reports that the High Court had nullified powers given to
the President “to pick a Chief Justice from a list of three nominees and send
them to Parliament for approval.”[1]
As a background, an amendment had been made to the Judicial Service Act[2]
which gave the President the powers to select from one of three nominees.[3]
‘Prior to the amendments, the Judicial Service Commission (JSC) was mandated to
submit only one name.’[4]
It
is pertinent to point out at this stage to provide a brief overview of the law
as it applies to appointment of Judges in Kenya, so that the discussion can be
put in context. Interviews of Judges after floating out adverts are conducted
in public and follow a thorough internal review, background check and vetting by
the JSC before applicants are shortlisted.[5]
Names of shortlisted applicant are made public in advance and the public is
also notified when the interviews will take place as well as inviting the
public to make submissions, if any, in relation to any of the candidates.[6]
The law provides that “the Commission shall, within seven days of the
conclusion of interviews, deliberate and nominate the most qualified applicants
taking into account gender, regional, ethnic and other diversities of the
people of Kenya.”[7] Furthermore, applicants
are notified of the decision of the JSC even before the names are submitted to
the President.[8] The names may also “be
posted on the [JSC’s] website and placed in its press release.”[9]
Once the JSC has made its decision, the names (now nominees) shall be submitted
to the President and shall not be reconsidered by the JSC “except in the case
of death, incapacity or withdrawal of a nominee”.[10]
The process laid down by the law is thorough and transparent. It is also
participatory.
This
amendment to the Judicial Services Act was challenged in the Kenya High Court
by the Law Society of Kenya and some members of the Judiciary. The High Court
comprising a bench of five Justices ruled that “to the extent that the
amendment compelled the JSC to send three names the said amendment is null and
void”.[11]
In their decision, the Justice opined, “the amendments, if allowed, will amount
to taking the people of Kenya back to the old process of appointment by the
President, which they discarded when they enacted the new Constitution.”[12]
In emphasising the doctrines of constitutional supremacy and separation of
powers, the Justices added “allowing the JSC to forward three names may result
in horse trading and mischief, which the Constitution intended to safeguard.”[13]
In
Constitutional Law and Constitutional Theory, the Constitution is supreme and
trumps all laws. That is the essence of the doctrine of constitutional
supremacy. In the Kenyan Constitution[14],
this is enshrined in Section 2. Section 2(4) invalidates any law that is
inconsistent with the Constitution. Any amendment to it must be done according
to the dictates of the Constitution itself. Now unlike Malaŵi, in Kenya the Constitution was actually passed by
a referendum of the people.[15]
It means any changes (of substantive nature) would need a similar process. To
reinforce this; the Kenyan Constitution holds that it is the people of Kenya
who are sovereign.[16]
So sovereignty is in and with the people but this sovereignty maybe delegated
to the three arms of government; viz Executive, Legislature
and Judiciary.[17] And relevant to this
discussion is the provision that says any amendment relative to the judiciary
and its offices shall be through a referendum.[18]
The
essence of the ruling by the High Court is that allowing the changes would
negative the doctrine of separation of powers. So ideally the Court is
enshrining the independence of the three arms of government and ensuring that
the Executive or indeed the Legislature is precluded from interfering with the
other arm(s). Put in plain language then, what the Parliament in Kenya
attempted to do was to amend the Constitution by amending a subsidiary Act of
Parliament. In other words by using a
prohibited backdoor route. This cannot do!
Now
the article in the Daily Nation also refers to separate decision where the High
Court held that it is mandatory that the President appoints all names submitted
by the JSC. In other words, the law does not provide room for the President to manoeuvre,
or as it is said in administrative circles, discretion.
The Court is sending a strong message that this idea of the President ticking
off names and cancelling others is really not on and does not promote judicial
independence. In fact it can be argued that the President cannot profess to
know the capabilities of nominees more than the JSC itself. That is where
cronyism and other patrimonial considerations creep in and this
erodes the independence of the judiciary. Bravo to the High Court in Kenya.
What
lessons can Malaŵi
learn from these two decisions which uphold the tenets of the Constitution and
refuse to allow any attempts to interfere with the will and wishes of the
people? Let us start by comparing the provisions that govern appointment of Judges
in Kenya and Malaŵi.
Section 166(1) of the
Kenya Constitution reads:
The President shall
appoint—
(a) the Chief Justice
and the Deputy Chief Justice, in accordance with the recommendation of the
Judicial Service Commission, and subject to the approval of the National
Assembly; and
(b) all other judges,
in accordance with the recommendation of the Judicial Service Commission.
1. The Chief Justice
shall be appointed by the President and confirmed by the National Assembly by a
majority of two thirds of the members present and voting.
2. All other judges
shall be appointed by the President on the recommendation of the Judicial
Service Commission.
These
sections with regards to appointment of Judges are almost the same or pari materia in legalese.[20]
In other words, it would be wise to pay attention to how the Kenyan High Court
has interpreted this provision as it is very similar to that obtaining in Malaŵi. It must be borne in mind, that the Malaŵi Constitution also has a section that invalidates
any law inconsistent with the Constitution.[21]
Furthermore, just like the Kenyan Constitution, the Malaŵian Constitution declares that it is supreme and
binds everyone including all arms of Government.[22]
So maybe we should not be surprised when the High Court in Malaŵi, if presented with a similar case, rules like
their counterparts in Kenya. I recall that in the past, some nominees have
sought to challenge appointments where the President seemed to have exercised
his powers by leaving others out or at times only appointing a few judicial
officers despite the high number of vacancies. If one reads both sections; in
the Kenyan and Malaŵian
Constitutions, it can be validly argued that once the recommendation has been
made by the JSC, there is little room for the President to exercise discretion.
Or put bluntly, there is no room at all. I guess that is the essence of the
doctrine of separation of powers; otherwise we would be blowing both hot and
cold.
The
situation is different however with the appointment of the Chief Justice. In Kenya
this follows the recommendation of the JSC. In Malaŵi this part is not in our law. Traditionally in Malaŵi the President has tended to appoint the most
senior Judge as the Chief Justice. So far tradition has generally served us
well. The only time this was deviated from related to the appointment of Chief
Justice Munlo. However, there is nothing in the law that says a President
cannot appoint a person from outside the bench. In the case of Chief Justice Munlo,
he had served at the High Court previously as well as at an International tribunal.
But to put it bluntly; there was dissatisfaction among some members of the
bench, lawyers as well as members of the public. And in a way, it is due to the
vagueness of the provision that such a situation arose. As things stand now,
there is nothing stopping the President from appointing someone who has never
even been on the bench as Chief Justice! The challenge maybe to get the nod of
Parliament in confirming the person. There were worrying reports that with the
current Chief Justice, CVs were
requested from the senior Judges. Fortunately the most senior Judge was
appointed and the day was saved. To avoid ‘horse trading and mischief, which
the Constitution intended to safeguard’ it maybe necessary to have that
provision in our Constitution clearly straightened out otherwise to leave it to
the discretion of the President erodes the doctrine of separation of powers. The
office of Chief Justice is one that needs the trust of the nation. It is
submitted that while the President retains his power to appoint from outside,
any such appointment runs the risk of alienating the appointee, among his or
her peers as well as with regards to the public.
Another
lesson that can be learnt from Kenya is the elaborate process of appointing
judicial officers. This ensures transparency and accountability of and in the
process. It also brings on board the public. In a way therefore, the public is forewarned as to who are likely to
become its Judges once the shortlisted names are published as well as once the
nominees have been decided. It would seem that despite adopting a new constitutional
order in 1994, Malaŵi
still have Acts of Parliament that are, to be it mildly, archaic. There is need therefore to ensure that all our laws align and
are harmonised with the Constitution. It is only when this is done that the
1993 referendum can have real meaning. It may be a laborious process; but that
is the cost of adopting a liberal constitution order.
Now as a final word, if one compares
this to the recent case which involved the Clerk of Parliament,[23]
that can be distinguished because the (manner of) appointment of the Clerk is
not enshrined in the Constitution but delegated to subsidiary legislation. That
said, the issue whether indeed the President retains discretion after a meritorious
recommendation has been made with regard to the Clerk may have been decided by
the Court but is still fertile ground for academic discourse. In Kenya the
words recommended have been interpreted to mean it is mandatory. Indeed others
may argue that the same would apply in Malaŵi. But it is important to emphasise that we are
referring to different types of legislation (Constitution and Act of
Parliament) and the principles of the interpretation may and indeed do differ.
[1] Abiud Ochieng ‘Judges clip President’s
powers in choice of Chief Justice’ Daily
Nation (Kenya) available at http://www.nation.co.ke/news/President-power-to-hire-Chief-Justice-quashed/-/1056/3220654/-/38n48kz/-/index.html
accessed 27 May 2016.
[2] Judicial Service Act, No.1 of 2011 (Kenya)
available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/Judicial_Service_Act_2011.pdf
accessed 27 May 2016.
[3] Statute Law (Miscellaneous Amendment) Act
2015, No. 25 of 2015 (page 1770) available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2015/StatuteLawMiscellaneousAmendmentAct2015.PDF
accessed 27 May 2016.
[4] Abiud Ochieng (n1).
[5] First Schedule, Judicial Service Act (n2).
[6] Ibid, Art. 9.
[7] Ibid, Art. 14.
[8] Ibid, Art. 15
[9] Ibid, Art. 15(3)
[10] Ibid, Art. 16.
[11] Jillo Kadida ‘Court clips Uhuru’s powers
to pick new CJ’ The Star (Kenya)
available at http://www.the-star.co.ke/news/2016/05/27/court-clips-uhurus-powers-to-pick-new-cj_c1358514
accessed 27 May 2016.
[12] Abiud Ochieng (n1)
[13] Ibid.
[14] The Constitution of
Kenya [Rev. 2010] available at https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf
accessed 27
may 2016
[15] Jeffrey gettleman ‘Kenyans Approve New
Constitution’ The New York Times
available at http://www.nytimes.com/2010/08/06/world/africa/06kenya.html?_r=0
accessed 27 may 2016
[16] Section 1.
[17] Section 1(3).
[19] The Constitution of Malaŵi
available at http://www.malawi.gov.mw/images/Publications/act/Constitution%20of%20Malawi.pdf
accessed 27 may 2016.
[20] Laws pari materia
must be construed with reference to each other – Adams et al v Day 14 LA. 503
(1840).
[21] Section 5.
[22] Section 4
[23] The
State v The Attorney General, Ex parte Enock Chihana et al Miscellaneous
Civil cause No. 86 of 2015 (High Court, Mzuzu).
