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.” As a background, an amendment had been made to the Judicial Service Act which gave the President the powers to select from one of three nominees. ‘Prior to the amendments, the Judicial Service Commission (JSC) was mandated to submit only one name.’
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. 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. 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.” Furthermore, applicants are notified of the decision of the JSC even before the names are submitted to the President. The names may also “be posted on the [JSC’s] website and placed in its press release.” 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”. 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”. 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.” 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.”
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, 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. 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. So sovereignty is in and with the people but this sovereignty maybe delegated to the three arms of government; viz Executive, Legislature and Judiciary. And relevant to this discussion is the provision that says any amendment relative to the judiciary and its offices shall be through a referendum.
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.
Section 111 of the Malaŵi Constitution reads:
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. 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. Furthermore, just like the Kenyan Constitution, the Malaŵian Constitution declares that it is supreme and binds everyone including all arms of Government. 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, 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.
 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.
 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.
 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.
 Abiud Ochieng (n1).
 First Schedule, Judicial Service Act (n2).
 Ibid, Art. 9.
 Ibid, Art. 14.
 Ibid, Art. 15
 Ibid, Art. 15(3)
 Ibid, Art. 16.
 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.
 Abiud Ochieng (n1)
 The Constitution of Kenya [Rev. 2010] available at https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf accessed 27 may 2016
 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
 Section 1.
 Section 1(3).
 Section 255(1)(d)
 The Constitution of Malaŵi available at http://www.malawi.gov.mw/images/Publications/act/Constitution%20of%20Malawi.pdf accessed 27 may 2016.
 Laws pari materia must be construed with reference to each other – Adams et al v Day 14 LA. 503 (1840).
 Section 5.
 Section 4
 The State v The Attorney General, Ex parte Enock Chihana et al Miscellaneous Civil cause No. 86 of 2015 (High Court, Mzuzu).