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Wait a minute, should the president just sign papers?

By David Oginde | June 26th 2021

President Uhuru Kenyatta with newly Chief Justice Martha Koome and Justice Philomena Mwilu at State House, Nairobi. [Courtesy]

Now that some of the dust has settled on the ruckus around the appointment of judges, we can perhaps critically and soberly analyse some of the key factors around the same. The most contentious was why the president selectively appointed some judges while leaving others out, and whether he had any legal leeway to do so.

The technical and legal answers to this question are currently the subject of consideration before the court. As such, we must patiently await their verdict to shed light in this dim alley. However, there are some matters of principle that, hopefully, do not fall within the rules of sub-judice and therefore can be interrogated without being in contempt.

As a student of leadership, I have been troubled, not so much by what the Judicial Service Commission (JSC) did, or by the actions of the president, but rather by the intentions of the framers of the Constitution.

In leadership studies, one of the most critical tools of leadership is the signet. According to historical records, the people of Mesopotamia used seals to authenticate documents. Such seals had unique marks that were used by wealthy families, and especially by kings to seal their deals – a phraseology we still use today.

Among the Medes and Persians, once a seal had been pressed upon a document, its force could not be reversed – even if the seal had been stolen and applied without the consent or approval of the king. Kings, therefore, had to be extremely careful how they stored the seals.

But, because unscrupulous individuals still found ways of stealing the seal, eventually the safest way was for the king to carry it around with him. This eventually gave birth to the signet ring about 3500BC.

The signet ring was won by the king on his finger at all times, whether awake or asleep. It was his most prized tool of leadership – the mark of his authority, and the power of his decisions.

Over time however, as writing became commonplace, the signet gave way to the signature – a word that actually derives from the signet. The signature thus acquired the same significance as the signet. All of us know that our signatures are our most prized possessions.

When your signature is forged, your account can be emptied, your car can be transferred, and your land can be sold. Indeed, your signature is so important that you are well advised not to apply it to any document before you have read, understood, and agreed with its contents.

How many of us have not found ourselves being “robbed” of our rights at critical moments, simply because we had carelessly appended our signature to a contract document without reading the fine print? Insurance companies are especially notorious for hiding the exclusion clauses in the fine print.

Yet, once you append your signature, if the deal goes south, the lawyers will be quick to remind you that ignorance is no defence. It is for this reason that leaders are advised never to append their signatures to any document without due diligence. Instead, they must only do so when they are in full agreement with the matters that they so approve, and for which they are ready to take full responsibility.

It is in this regard that we interrogate the constitutional process in appointment of judges and in a few other issues. We have a situation where the drafters of our constitution require the president (Not Uhuru Kenyatta) to apply his or her signet to documents, whether or not he or she approves of them. With all due respect to our Committee of Experts, this in my considered view is bad law.

If the intent was to exclude the president from the decision-making chain, the prudent thing would have been to not include this function in the process.

Judges being judicial officers, could be legitimately hired by the JSC as the final appointing authority. Otherwise, the current arrangement not only generates unnecessary friction, but is akin to legally “stealing” the presidential seal and giving it to the JSC. In this, the CoE may not have done us justice. I so submit.

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