Opinion: Why MPs are wrong on vetting of elected members of JSC

In the six years he has been Speaker of the National Assembly, JB Muturi has exhibited an increasingly heartening appreciation of the role of the National Assembly in a reformist constitutional dispensation.

Though he was elected courtesy of the Jubilee government, one can hardly describe him as a Jubilee hawk.

Even when one disagrees with his decisions, one admits that they are generally well argued and based on a consistent philosophy of the law. His dismissal of the petition filed against the Chief Justice and other members of the JSC is the most recent example.

However, I must admit that the decision to subject Justice Mohamed Warsame to a vetting process by Parliament before he can be a member of the JSC flies in the face of this trend.

I appreciate that by virtue of Article 250(2)(b) and 132(2)(f) of the Constitution, there appears to be a requirement for Parliamentary vetting of members of all Chapter 15 Commissions. There are however three reasons why Parliament is wrong on vetting of elected members of the JSC.

GENERAL PROVISIONS

Firstly, Article 250 and 132 are not closed Articles. Article 132(2)(f) clearly provides that it is subject to other provisions of the Constitution. Article 250(2)(b) on the other hand is one of the Articles in Chapter 15 which contains provisions on the formation and management of all Constitutional Commissions.

In the introductory part of the Chapter, Article 248(1) clearly states that the provisions of the Chapter, including Article 250, only apply in those circumstances that the Constitution itself has not made specific provisions to the contrary.

Because Chapter 15 contains general provisions, the Constitution recognizes that there will be times where specific Commissions will be governed by rules that run contrary to the generalist provisions.

While for example all Commissions under Article 250(6)(a) are allowed to run for only one single term of six years, members of the Parliamentary Service Commission run for 5 year terms by virtue of the provisions of Article 127(4). Members of the JSC are, by virtue of Article 171(4), permitted to run for a second term.

While under Article 250(1) all Commissions consist of not more than nine members, the JSC, by virtue of Article 172(2), has ten members, the Parliamentary Service Commission has eleven members and the SRC has 14 members! While Article 250(2) requires that the manner of appointment of members of Commissions be managed in the manner prescribed by Parliament, many Commissions including the SRC and JSC have their processes of nomination provided for in the Constitution.

It is therefore clear that the provisions of Chapter 15 on approval by Parliament are not mandatory and the Constitution itself may provide for a different mode of nomination prior to Presidential appointment.

Secondly, even for members of the JSC, where Parliamentary approval is necessary, the Constitution specifically requires it. Article 171(2)h for example requires that the two persons who are nominated by the President into JSC must undergo Parliamentary approval.

There is no corresponding provision for the elected members listed in the same provision. Finally, the vetting by Parliament after an election process would result in an absurdity. Parliament has consistently argued that the ultimate act of vetting is the electoral process. That is why Parliament has always been totally opposed to pre-election vetting for integrity by EACC.

How much worse would this situation be where vetting would occur after an electoral process. Suppose Parliament were to reject the person elected by members to represent them? Would that not be the ultimate abuse of sovereignty of the voter?

Can one imagine a situation where Parliament rejects successive nominees after their election? This would not just violate Article 1 on sovereignty but would lead to the ultimate legal absurdity.

While it is important that Parliament carries out the onerous task of vetting State officers for suitability, that role must respect the dictates of Constitution. There will otherwise be no greater violation of the Constitution than when it is executed by those vested with its very protection.