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Why Judiciary must not capitulate to Executive

By Demas Kiprono | June 12th 2020

This week, the Chief Justice (CJ) accused the President of violating the Constitution by refusing to appoint 41 judges and disobeying several court orders. In response, the Attorney General (AG) accused the CJ of getting personal and doubled down by stating that the President would not appoint judges who are of questionable character.

It is worth noting that the Executive has increasingly displayed a penchant for disregarding court orders. Senior government officials have failed to enforce or honour court orders and instead publicly challenged the validity and legitimacy of the orders or the motives of the judicial officers who rendered them.

In a democracy, parties are obliged to honour court orders, and if they disagree, they may appeal the case in a higher court and even seek suspension of enforcement, pending the appeal process.

The issue of the role of the Judicial Service Commission (JSC) vis-a-vis the President in the appointment of judges has created a fundamental flashpoint regarding the nature and roles of both the JSC and President in the selection and appointment of judges. Who between the CJ and the AG is right?

The President and the AG argue claim some of the nominees are tainted and thus unsuitable to serve as judges. However, the Judiciary and the JSC contend that the President has no role whatsoever in the selection of judges - save for his ceremonial role of appointing judges in his capacity as Head of State.

To them, it is the sole province of the JSC, where the AG is also a member, to advertise vacancies, shortlist, interview, select and recommend suitable persons.

The courts have reiterated that the President is compelled to appoint persons recommended to him by the JSC under Article 166 of the Constitution. In its core architecture, the Constitution tried to entrench and protect the separation of powers, especially judicial independence.  

The idea was to ensure that judges, who were presidential appointees before 2010, would never again bend the law to please their appointing authority at the expense of justice, human rights and democracy. Before, judges aided and endorsed torture, wrongful prosecution, arbitrary arrests, land grabbing, environmental degradation and even electoral fraud to please the government and avoid reprisals.

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In fact, after the 2007 General Election, some believe violence erupted because the option of mounting an election petition seemed futile. Despite a highly contested election process, President Mwai Kibaki was hurriedly sworn in the evening by CJ Evan Gicheru, who was his exclusive appointee.

Moreover, in the 1997 elections, then Opposition leader Kibaki’s attempt at challenging the presidential result was thrown out by the Court of Appeal based on a technicality. The court stuck to the rules, requiring personal service of court papers to the President, which was an impossible feat considering accessibility issues.

As such, something had to be done to remove Executive hegemony on the Judiciary and to allow judges to freely, professionally and independently dispense justice. The drafters of the Constitution ensured that JSC was an independent creature made up of a multi-stakeholder and multi-interest membership drawn together to express the collective will of Kenyans.

The JSC consists of two representatives of the people appointed by the President, the AG, a PSC representative, a man and woman from the Law Society of Kenya, three representatives of magistrates, High Court, Court of Appeal and Supreme Court and the CJ.

After candidates are shortlisted, members of the public and law enforcement bodies, including the National Intelligence Service, are invited to provide material information on them.

However, in this instance, the President and AG claimed to have had adverse information about some of those picked by JSC, but failed to provide it to the JSC.

It is worth noting that the President also refused to appoint those recommended by JSC in 2014 when he refused to appoint 14 judges. However, he later appointed them after the court compelled him to.

In the spirit of transparency, accountability and access to information, the President should immediately appoint the judges. If the information regarding questionable character of some of them is true, they should institute removal proceedings under Article 168 of the Constitution.

Keeping in mind that Parliament seems increasingly captured by the executive, the Judiciary and JSC should refuse to capitulate, being the forum of last resort for protection of everyone’s rights and the law.

Mr Kiprono is a Constitutional and Human Rights Lawyer. [email protected]

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