Conflicting principles manifest in case on judicial appointments

In April, the Supreme Court of Kenya spoke eloquently for judicial independence and, by extension, the independence of the mechanism by which judges are chosen, the Judicial Service Commission. It’s a watershed decision in that it will significantly change the way in which members of the JSC are appointed: the court said the president of the country had no function, not even a ceremonial one, in appointing and gazetting JSC members and that the role that the president had assumed in the past was a ‘fundamental contravention’ of the constitution.

The litigation in this case was prompted by the actions of former president Uhuru Kenyatta whose terms of office were characterised by institutional conflict – sometimes escalating to intense levels – over the relative powers of the executive and the judiciary.

In 2018 he prompted another such conflict in relation to the appointment of a senior appeal court judge, Mohammed Warsame, as a member of the Judicial Service Commission (JSC). Instead of rubber-stamping the appointment of this judge, as had been done when he was chosen for a previous term on the JSC, the president sent Justice Warsame’s name to the National Assembly for approval, thus raising two critical questions: what is the role of the president in the appointment of JSC members, and is parliament supposed to vet a member of the JSC who has been democratically elected by his or her peers?

The constitution provides that there should be 11 members of the JSC: the Chief Justice, the Attorney-General, one judge from of each level of the higher courts, chosen by their peers, a representative from the magistracy, two from the legal profession, one from the Public Service Commission and two members of the public.

Suitability

Justice Warsame was chosen by the rest of the appeal court judges to be their representative on the JSC. But when Kenyatta received his name, he had notices published in the media asking the general public for their views on Warsame’s ‘suitability’ for the position.

This led to a spate of correspondence, and then to litigation, on whether Kenyatta’s actions were constitutional. Was he supposed to invite comment from parliament or the public? Did he have any role at all in appointing representatives chosen by the various arms of the judiciary?

The High Court found that the president only needed the approval of the national assembly for the two members of the public nominated to serve on the JSC, and that no parliamentary or presidential approval was needed for any of the other commissioners.

At the Appeal court, the judges agreed with the outcome at the High court, in particular, that the only people needing parliamentary approval were the two candidates representing the public. It found that Justice Warsame, ‘having been elected by his peers as a member of the JSC, was not subject to approval by the National Assembly.’

The role of the president, said the appeal court, was ‘simply to appoint an elected commissioner within three days of submission of the nominee’s name.’

At the Supreme Court, counsel were involved in what seems to have been intense debate with the bench hearing the matter over the separation of powers and the principle of checks and balances.

Bold submission

This included what the court would later call a ‘bold submission’ by the AG: the names given to the president were ‘mere proposals, suggestions or recommendations,’ said counsel, ‘but the ultimate decision rests on the formal appointment by the president in his capacity as head of state, and not as head of the executive arm of government.’

Counsel for Justice Warsame pointed out that in 2013, when he was elected by his colleagues on the appeal court to represent them on the JSC, his name was forwarded to the president who ‘duly appointed him’ without seeking approval from the national assembly. This had changed in 2018.

In its judgment, the supreme court majority held that Kenya’s various constitutional commissions differed in the way its members are officially appointed. There was no requirement that the JSC representative of the appeal court judges should be approved by parliament, said the supreme court judges, and subjecting him, this time round, to parliamentary approval ‘was not only in bad faith, but amounted to a breach of his legitimate expectation and a fundamental contravention of the constitution.’ They added, ‘The constitution does not permit the [national assembly] to vet and approve an elected member of the JSC.’

Absurdity

Kenya’s constitution-making history made it clear that the current constitution intended for there to be an independent JSC and judiciary. And, based on that history, said the judges, they came to the ‘inevitable conclusion’ that the framers of the constitution had no intention to subject any of the JSC members, chosen by their peers, to ‘an “appointment” by the president.’

‘It is a contradiction in terms and an inherent absurdity to suggest that members elected by their peers or nominated by a state organ can, at the same time, be “appointed” by a different person or authority.’

Then came a further conclusion that might have surprised many: the four-judge supreme court majority found that Justice Warsame was wrong to argue that the president’s only role in appointing him was ‘ceremonial’. No, said the court. The president doesn’t even have a ceremonial role in that appointment.

Forgetting history

Elections of the appeal court member to represent the rest of that court on the JSC were carried out by the Independent Electoral and Boundaries Commission (IEBC) and this was the body to confirm his election via a certificate, the court held. It is also the IEBC that should publish a gazette notice confirming the outcome of these elections. This was to be followed by the taking of the oath of office before the chief justice.

‘Traditionally, as a practice carried over from the old constitutional order, the president has always issued a gazette notice to signify the appointment of elected or nominated representatives in the JSC. With the new order, it is our view that this role ought to be played by the IEBC, but certainly not the president.

‘To give the president power to appoint or even to “appoint” by mere gazettement of names is to forget our history …’.

The section of the Judicial Service Act that appeared to give the president the power to appoint elected and nominated members of the JSC, was void for being ‘inconsistent with … the constitution which does not recognise such power,’ the majority held.

What of the dissenting single judge, Justice Njoki Ndung’u?’

She disagreed with just about everything in the majority decision, but it’s interesting to note that this was based on her view that there was a ‘bigger’ issue at stake than the president’s appointing power – namely, the requirement that representatives of ‘the people’ should have a say in such appointments.

Before the present constitution was finalised, ‘the people of Kenya’ had told the commission reviewing the final draft that parliament should take over vetting and approving senior appointments from the president and that one of parliament’s functions should be to ‘act as a watchdog over the executive’ to check executive excess and approve key presidential appointments.

‘The people’ wanted presidential powers to be curtailed’. How could parliament do this, if such appointments weren’t referred to the national assembly for vetting, asked Justice Ndung’u.

If the president were to appoint JSC commissioners without the approval of the national assembly, it would deprive Kenyans of the right to participate in the appointment of such commissioners, she said.

Checking presidential power

The parliamentary approval process was meant to check the president’s powers of appointment, ensure that the nominees met the constitution’s ‘integrity test’ and to ensure such constitutional values as participation of the people, integrity, transparency and accountability’, she concluded.

Since that view was taken by just one of the five judges hearing the matter, the majority decision – insulating the JSC appointment process from presidential and parliamentary involvement, other than in relation to the two public representatives on the commission – stands, and will from now on be required practice. (