The doctrine of separation of powers is the cornerstone of a functional democracy. It is a doctrine of constitutional law under which the three arms of government are kept separate. The intent is to prevent the concentration of power in one arm and provide for checks and balances. If observed to the latter, the doctrine seeks to secure the independence of the Executive, the Judiciary and the Legislature.
Whereas decisional independence is absolute and no arm is to be influenced by the other when making decisions relating to the discharge of their functions, institutional interdependence is a necessary ingredient if the three arms of government are to work in harmony.
Throughout Africa, judiciaries have been held hostage by rogue executives. In Kenya, the history of our judicial independence is wanting. The Executive has historically undermined the rule of law by seeking to capture the institution of the Judiciary. The period between 1971 and 1982 was characterised by the most blatant abuse of Kenya’s justice system. For the Executive to keep controlling the Judiciary through the then Chief Justice Sir James Whicks, it would amend the Constitution thrice to keep their man at the helm.
At the time, the Chief Justice would leave office upon attaining the age of 68. However, when Whicks attained the retirement age, the law was changed to have judges retire at 70. Upon reaching 70, the law was changed to have judges retire at 72. On attaining 72, the law was changed to have judges retire at 74. The joke in town was that Sir James Whicks was more “Executive-minded” that the Executive itself.
Refusal by President Uhuru Kenyatta to appoint various nominees to the Court of Appeal, the Environment and Land Court and the Employment and Labour Court rekindles those sad memories when the Kenyan Judiciary was held hostage by the Presidency. The President has cited various reasons for his refusal to act on the recommendations of JSC. The President claims that some of the nominees have adverse reports hanging over their character, integrity and reputation.
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This begs the question, has the Executive become the barometer of morality, integrity and value system? Who feeds the Presidency with information regarding private citizens? How is the information obtained? How is it tested? Aren’t some of the nominees already serving judicial officers? Is the Presidency saying that the judiciary is rotten to the core?
The Constitution provides that the President shall appoint judges in accordance with the recommendations of the Judicial Service Commission. This constitutional provision is couched in mandatory terms through the use of “shall’’. Whereas we appreciate the fact that the holder of the office of a judge must be a person of high moral character, integrity and impartiality, it is not for the President to determine the foregoing virtues in the appointees.
Before the JSC considers any person or the appointment to the office of a judge, it invites the public to make reservations regarding the suitability of the candidates. The commission is not a trial court. It considers the reservations on the basis of evidence brought to its attention. It is therefore trite law that once the commission has addressed its mind on the nature of the reservation and concluded that they do not meet the threshold set to exclude a candidate, the President must appoint such a person.
By refusing to appoint the nominees, the President has indicted the entire commission. The Head of State is telling the Republic that the entire process was a joke.
Secondly, the Head of State is simply arguing that the Attorney General has let him down. As Chief Legal Advisor to the Government and member of the JSC, the AG ought to have given the Executive ‘proper’ advise like arresting the ‘tainted' nominees just before the interviews and arraigning them in court.
This way, the JSC would have been reluctant to recommend for appointment persons facing trial. This is how a cunning system employs tact to deal with its perceived real or imagined enemies. If the President truly believes in the reasons he has given for the refusal to appoint the judges, he must not just recall the Attorney General from the JSC, but also retire him in public interest.
If the President successfully refuses to appoint the judges, the Chief Justice should also refuse to swear in the next President, Deputy President, governors and deputy governors if there are any questions surrounding their morality and integrity. An eye for an eye even if the country will go blind.
Mr Echesa is a lawyer and part-time Lecturer at University of Nairobi's School of Law.
