President broke the law: now what?

Last Friday, President Kenyatta approved for appointment 11 judges out of the 25 nominated by the Judicial Service Commission. It is said that he is studying the remaining judges before he decides on nomination and swearing in, but there is no indication of what he is pondering over.

Moreover, he has not appointed any of the three nominees to the Judicial Service Commission (JSC) who are elected or nominated by different constituencies (presumably he is still studying the list). These nominations were submitted last December or early this year.

The question begs; is the President aware of Kenya’s Constitution under which he was elected and now governs the country? The rules for appointment of judges and JSC members are very clearly set out in the Constitution.

Except for the appointment of the Chief Justice and his or her deputy, the President has absolutely no discretion. The JSC makes “recommendations” and the President appoints. The list does not go to Parliament, as many other types of appointments do. The reason for this rule was to enhance the independence of the Judiciary, given its subordination by previous presidents.

Those who gave their proposals to the Constitution of Kenya Review Commission (CKRC) were unanimous in asking for appointment of judges by JSC alone to ensure competence and independence. The same goes for members of the JSC. Swearing in is even more of a formality.

The President is required to respect, uphold and safeguard the Constitution. Instead, he has set out deliberately to break it, and not for the first time. In fact, it is more than a breach — it is defiance.

Both JSC and the Law Society of Kenya have asked the President to make the appointments in view of the Judiciary’s heavy workload. They have also been concerned to ensure the proper functioning of the independent JSC, which is critical to the proper operation of the judicial system. The President has sat on the lists for nearly half a year (in the case of JSC, nominees must be appointed within three days).

Assuming that no President under the new Constitution would breach its provisions, the Committee of Experts (trusting presidents more than CKRC) gave the President complete immunity from criminal and civil proceedings for the breach. So what do Kenyans do if the President deliberately breaches the Constitution as in this case?

Well, they can in the most servile language (some Kenyans are very good at that) remind His Excellency of the pending nominations, acknowledging at the same time that he is busy with more important State affairs (what the LSK nearly did). What if this does not succeed? They can always try the Attorney-General, who is the legal adviser to the Government and whose duty it is to remind busy presidents of minor affairs like the Judiciary, which might require a few minutes of his attention.

The AG is as much bound by the Constitution, nay even more, than mere citizens. It is also his duty to “promote, protect and uphold the rule of law and defend public interest”. It is on the basis of this provision that Githu Muigai introduced the Office of the AG Bill — assuming powers not given in the Constitution — and got it passed.

So what has Githu been doing (apart from ICC and Anglo-Leasing)? To be fair, he probably did tell Uhuru he should appoint, but sensing Uhuru’s view on the matter, he quickly changed his opinion. No one can tell the President what he should do, especially if he has no stomach for it.

If Githu does not or cannot help, how about an impeachment? The President can be impeached for one of three reasons: (a) gross violation of the Constitution or any other law; (b) committing a crime under national or international law; (c) gross misconduct. For those who believe that the President has broken the Constitution, the grounds for impeachment are obvious. But then start the difficulties.

Impeachment can only be initiated by a member of the National Assembly, where a vote of two-thirds of all its members is necessary to move the matter forward, sending it to the Senate. The Senate will set up a committee that may dismiss the charges, otherwise it would be voted on by the entire Senate, again by two-thirds of all its members.

This is no easy matter - and can be extremely lucrative for members of both houses. It was veteran parliamentarian Martha Karua who once said that on significant votes, more money changes hands in bunge than even Sotheby’s auctions. The issue will inevitably be politicised — and for the time being Uhuru can easily block it at the first step.

So what should we do? What Kenyans typically do — make some noise, hold a Press conference and move on.