How verdict on judges puts separation of powers in peril

President Uhuru Kenyatta and CJ Martha Koome. [File, Standard]

There is no doubt that the High Court decision on Thursday on the six remaining judges is monumental. For the unaware, the Judicial Service Commission, in the exercise of its powers under Articles 166 and 172 of the Constitution, recommended 41 judges for appointment by the President.

After a long tussle with the JSC, the President appointed 34 of the judges after the exit of former CJ Maraga, leaving out six. The Constitution clearly states that upon a recommendation by the JSC, the President “shall appoint” the judges. The Constitution never anticipated the possibility of a President refusing to perform this duty.

Indeed, to ensure the President was a part of the process of the appointment, he is allocated two direct seats in the JSC, and two others; the Attorney General, and a nominee of the Public Service Commission, who tends to be a presidential nominee.

The assumption was that whatever reservations the President had about an interviewee would be presented by these representatives. The situation where the President had cause to refuse a nominee was not anticipated.

The Constitution however also failed to anticipate the possibility that a President, whose representatives are a minority in the JSC, could raise issues of constitutional incapacity of interviewees which could be ignored by the commission which then presented him or her with what he or she considers persons who do not meet constitutional standards.

As a person who, in the exercise of his constitutional powers, has to “uphold, protect and defend” the Constitution, what are his options? While I am not sure the basis upon which the President refused to appoint the six judges and whether it falls within my hypothetical situation, the court on Thursday resolved the issue of the President’s powers of appointment with staggering implications.

In the case brought by Katiba Institute the court firstly, reaffirmed that the President’s role, upon recommendation by the JSC, was nominal. If the President failed to carry out this “nominal constitutional duty”, an oxymoron if there was ever one, in 14 days, he would become “functus”; his role would be unnecessary, and the judges would be deemed appointed.

Furthermore, the court found that the process of swearing judges before the President was a tradition and not a statutory requirement. The court, therefore, ordered that the judges be sworn in before the Chief Justice. The court decision raises fundamental questions about separation of powers and the role of the Judiciary in re-shaping and re-jigging the constitutional powers of institutions in the quest for a “just cause”.

That issue will continue to arise especially where the courts then appear to be encroaching on the powers of other institutions. Only recently the courts re-jigged the powers of Parliament on amendment of the Constitution and brought the court into the centre of determining the terms under which amendments could be carried out by Parliament.

Can the courts ignore clear constitutional requirements and through the powers of interpretation rewrite the Constitution even where the language is clear and unequivocal?

For the avoidance of doubt, I believe the President ought to have appointed the judges and if their violations were so crass as to deem their holding office unworthy, these matters should then have been brought to the public domain and avenues for their removal applied.

That notwithstanding, my concern is that while I believe the judges mean well and that we will celebrate the courts’ actions when they are generally aligned to the public interest, what will become of our Constitution if the courts go rogue?  

I join Plato and others in asking; quis custodiet ipsos custodes; Who then, will watch these watchers? This is a conversation we must have as a nation undergoing renewal.