Our Constitution needs ample space to mature

This week the High Court made two major rulings that significantly reduce presidential discretion in the exercise of executive power vis-a-vis the Judiciary. In one case, the court declared that the President had no power to review the persons nominated as judges by the Judicial Service Commission (JSC). He was obliged to appoint those nominated, and without delay.

In the other, Section 30(3) of the Judicial Services Act was declared unconstitutional. These decisions raise interesting jurisprudential questions on the true content of the constitutional powers of the President as appointor of State officers. For those unfamiliar with the latter matter, Article 166 of the Constitution provides that the Chief Justice and Deputy Chief Justice shall be appointed by the President "in accordance with the recommendation of the Judicial Service Commission...".

Consequently, the Judicial Services Act was enacted in 2011 giving the JSC powers to recommend one name each to the President for these positions. In 2015, the National Assembly amended Section 30 requiring that instead of one name, three names would be submitted to the President for each of the two positions, for him to appoint one. There was hue and cry from the opposition CORD and significant portions of civil society. In the views of those opposed to the changes, the amendments converted the President from a mere ceremonial role of crowning the JSC nominated candidate, to a substantive appointment role, contrary to the intentions of the Constitution.

In their view, this amounted to Executive encroachment on the independence of the Judiciary. Those supportive of the amendments argued that the Constitution had foreseen a role for the President, which was not merely ceremonial. In their mind, the amendment was balancing between the JSC's selection role and the President's appointive role. In their view, as long as the person appointed emanated from the JSC three, there was no interference with the JSC's substantive mandate. On the face of it, this issue appears to be academic but once it is considered in its wider context, it raises fundamental issues. Prior to the enactment of the Constitution, the Judiciary had become and extension of the Executive, the President having the powers to hire and fire judges including the Chief Justice. One of the major reform pillars was the need to unshackle the Judiciary from the Executive.

Consequently, any action that appears to even give a hint of Executive overreach in relation to the Judiciary sends legitimate panic and is viewed with utmost suspicion. Such suspicion is enhanced when the amendments come at a time when both the Office of the CJ and deputy will be vacant soon. Once one further recognises that the Supreme Court, where the two preside, has the sole jurisdiction on the ultimate political question in Kenya, the presidential petition, the matter moves from an academic plane. Purely as a legal point, I believe that Section 30(3) was not unconstitutional and so I disagree with the findings of the court. But taking into account the political and social context in which these amendments were made, they were fundamentally unwise. It must be remembered that in the context of the JSC, the incumbent already has a hand in the pie, with three members in the JSC being his appointees, if one counts the Attorney General.

The incumbent must therefore never be seen to be trying to get a further hand into the pot, however, good intentioned he may be. Furthermore, in the context of an election, the incumbent already has the instrumentalities of the State acting in his favour; appearing to tilt the deck further in his favour just creates unnecessary suspicion. Even though I know there will be an appeal and the courts may yet reverse this week's decisions, my view is that the Section 30 amendment was in any event ill-advised and would serve the country better if just repealed. As a parting shot, I hope that these rulings send a message to those pursuing unconstitutional means to achieve their purposes that the Constitution can work, even against the incumbent, if we just give it the space. Unless it's the only option available, and I posit that it is not, move off the streets and allow our young Constitution space to mature.