By Walter Khobe

The Constitution in an attempt to safeguard the institutional independence of the judiciary establishes the Judicial Service Commission (JSC) to promote and facilitate the independence and accountability of the judiciary. (See generally, Walter Khobe, ‘The Composition, Functions, and Accountability of the Judicial Service Commission from a Comparative Perspective’ in J.C. Ghai, (ed.), Judicial Accountability in the New Constitutional Order (Nairobi: International Commission of Jurists-Kenya Section, 2016), pp. 47-71 for a critique of the independence and accountability of the JSC) The JSC has a crucial role to perform in the appointment and removal of judges. It recommends judges for appointment by the President, except for the Chief Justice and the Deputy Chief Justice whose appointment must be approved by the National Assembly. It also initiates the process of removal of judges, though the determination whether a judge should be removed from judicial office vests with an independent tribunal appointed by the President to inquire into the suitability of a particular judge to hold office. These twin roles, appointment and initiation of judges’ removal process, makes the JSC a powerful actor in the control of the judiciary in the Kenyan context. This has attracted the attention of the Executive branch in the post-2017 elections period and it has embarked on the process of reining in and taking control of the JSC.

The JSC is composed of the Chief Justice who is its Chairman, one High Court judge, one Court of Appeal judge, one Supreme Court judge, one Magistrate, the Attorney General, two advocates (a man and woman), one nominee of the Public Service Commission, and a man and woman to represent the public, not being lawyers appointed by the president with the approval of the National Assembly. The composition of the JSC is carefully crafted and excludes political interests – this was designed to prevent party political considerations from trumping other considerations and to insulate the process of appointment and removal of judges from political considerations. This is so because in a constitutional democracy like Kenya, judges who enforce an expansive and supreme Constitution would be particularly vulnerable to attack by politicians when the decisions of the judges have far-reaching political consequences.

Dissatisfied with the performance of the previous members of the JSC, who had largely supported the independence of the judiciary, the President replaced four members of the JSC. The Attorney General, Githu Muigai was replaced with Justice Paul Kihara Kariuki, who was the President of the Court of Appeal at the time of his appointment. The two representatives of the public, Winnie Guchu and Kipng’etich arap Korir, were replaced with Olive Mugenda, and Felix Koskei. While the representative of the Public Service Commission, Margaret Kobia, was replaced with Patrick Gichohi. It should be noted that the appointments of the three commissioners, the exception being the Attorney General, was later challenged in court for lack of public participation and the High Court temporarily barred the three nominees from assuming office. The temporary orders were subsequently vacated after the High Court dismissed the Petitions upon hearing all the parties, though the petitioners have preferred an appeal to the Court of Appeal.

In addition, the appointment of Justice Kihara Kariuki as the Attorney General from the bench raises worrying concerns about the independence of the bench. Appointing a judge to serve as the top-most legal adviser of the executive branch undermines the independence and integrity of the judge as well as violates the principle of separation of powers. The appointment points to a possible trend of dangling the carrot of career advancement through attractive executive appointments to judges. Angling for such appointments has the cumulative effect of eroding judicial independence.

In a further attempt to shore up the executive’s control of the JSC, the President purported to submit the name of the elected Court of Appeal’s representative to the JSC, Justice Mohamed Warsame, to the National Assembly for parliamentary approval. This purported requirement for parliamentary vetting of a judge elected by judges of the Court of Appeal to represent the court in the JSC violates article 171(2)(c) of the Constitution. The Constitution does not impose parliamentary vetting as a prerequisite for a representative of the judges to assume office in the JSC. There is a strong textual argument that the constitution does not require parliamentary approval for elected representatives of judges and lawyers to the JSC, this is due to the fact that the constitution explicitly provides such a requirement for the representatives of the public to the JSC. So if the constitution makers wanted to provide such a requirement for the elected representatives of the judges and lawyers, they would have said it openly, as they did regarding representatives of the public appointed by the President. The High Court in a judgment by Justice Chacha Mwita has affirmed this point and declared vetting of elected representatives to the JSC unconstitutional. However, the Executive branch has failed to gazette Justice Warsame as a commissioner of the JSC in defiance of the judgment by the High Court.

It should be noted that the electoral dominance of the ruling Jubilee party that has captured parliament would render such a vetting process to serve as a mechanism of weeding out independent individuals who are not agreeable to the agenda of the ruling party. The Jubilee party has enjoyed electoral dominance in parliament, first as a coalition of the National Party (TNA) and United Republican Party (URP) in the 2013 elections and then as a merged party in 2017 elections, with all other parties and coalitions lagging far behind. Such a system in which one political party continuously wins overwhelming electoral victories in elections is often referred to as a “dominant-party democracy”. (See Sujit Choudhry, ‘He Had a Mandate: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy’, (2009) 2 Constitutional Court Review 1; See also Samuel Issacharoff, ‘The Democratic Risk to Democratic Transitions’ (2013) 5 Constitutional Court Review 1.)

It is important to note that the electoral dominance of one political party has the potential to influence the manner in which various constitutional structures in a democracy operate. Advocates of the dominant-party thesis argue that the dominant status of one political party in a democracy has the tendency to erode the checks on the power of the executive created by a democratic constitution. Legislative oversight over the executive in Parliament may be stymied and opposition parties may be marginalized where one political party dominates the legislature. Of course this is heightened in the Kenyan context of “handshake” politics between President Kenyatta and the Hon. Raila Odinga that has rendered Kenya to be without a clear opposition party in Kenya’s post-2018 politics. There is also a danger that a dominant party may ‘capture’ various independent institutions –including independent constitutional commissions like the Judicial Service Commission – by ensuring parliamentary approval for people whose views are agreeable to the dominant party’s agenda thus removing effective checks on the exercise of power by the executive branch of government.(See Pierre de Vos ‘Between Promise and Practice: Constitutionalism in South Africa More Than Twenty Years after the Advent of Democracy’ in M. Adams et al (eds) Constitutionalism and the Rule of Law: Bridging Idealism and Realism (Cambridge: Cambridge University Press, 2017) p. 234.)

The other Member of the Judicial Service Commission who has faced woes in the aftermath of the nullification of the Presidential elections in 2017 is the Deputy Chief Justice Philomena Mbete Mwilu. She is the elected representative of the Supreme Court in the JSC. On 28thAugust 2018, the Director of Public Prosecutions, Mr. Noordin Haji authorized the prosecution of the Deputy Chief Justice Philomena Mbete Mwilu for allegations related to credit facilities/transactions between Imperial Bank Limited (In Receivership) and the Deputy Chief Justice, and an alleged failure to pay stamp duty on four properties purchased by the Deputy Chief Justice between 2014-2016. The advocate who acted for the Deputy Chief Justice in the said transactions and paid stamp duty as a condition for the registration of the transfers, Mr. Stanley MuluviKiima, was also arrested with the Deputy Chief Justice. (See Walter Khobe ‘Autocratic Legalism? The Intended Prosecution of Deputy Chief Justice Philomena Mwilu in Context’, The Platform, Issue 36, October 2018)

Justice Aggrey Muchelule who is the representative of the judges of the High Court in the Judicial Service Commission has been the subject of a smear campaign targeting his integrity on social media platforms. Government leaning bots and personalities, have mounted a vicious assault on his integrity. The unwarranted and unjustified attack can be argued to be part of a pattern to deligitimise the JSC.

In sum the emerging pattern conforms to those baptised by the political theorist Nancy Bermeo as “executive aggrandizement”. Executive aggrandizement is the institutional changes which limit the opposition to executive preferences. (See Nancy Bermeo ‘On Democratic Backsliding’ 2016 27(1) Journal of Democracy pp. 5-19). The execution of this plot to weaken the independence of the JSC and eventually the independence of the Judiciary closely follows Nancy Bermeo’s construction of executive aggrandizement, in which “judicial autonomy” is suppressed and subverted by the executive.

The Case of Tom Ojienda

Prof. Tom Ojienda, who serves as the male representative of advocates to the JSC, was arrested on Friday the 28th December 2018. He was arrested on allegations by the Directorate of Criminal Investigations (DCI) that he had obtained money by false pretense. The allegations stem from alleged financial misappropriation and fraudulent dealings at the troubled Mumias Sugar Company. The DCI alleged that they had discovered use of fake court proceedings, numbers, and parties that were allegedly used by several legal service providers to obtain monies, as legal fees, from Mumias Sugar Company. The Director of Public Prosecutions approved his prosecution with charges that include obtaining money by false pretences, uttering false documents, abuse of office and conspiracy to defraud the company.

The arrest of Prof. Ojienda on a Friday afternoon, and indeed the arrest of other Kenyans, without due recourse to the constitutional rights guaranteed under Article 49(1)(f) of the Constitution, which requires an arrested person to be brought before court as soon as possible and not later than 24 hours after arrest is an assault on the rule of law. This practice is objectionable, in bad faith and contrary to Article 157 (11) of the Constitution, which requires the DPP to prevent and avoid abuse of the legal process. Moreover, an advocate is an officer of the court and should be granted police bond, unless there are serious factors mitigating this. Thus there was no justification for the refusal to grant police bond to Prof. Ojienda.

In response to the allegations, Prof. Tom Ojienda stated that he did not, could not, and had never filed a fake case. He also stated that he had never conspired with any person to be paid for work not done. He pointed out that it was curious that during the alleged investigations, no statement was sought from him. He said that all his records and instructions with Mumias Sugar Company are intact.

While it behoves everyone to support the ongoing “war” on corruption being spearheaded by the Head of the DCI, George Kinoti and the Director of Public Prosecutions, Noordin Haji, the claims that no statements were sought from Prof. Ojienda before the arrest raises questions on the propriety of the arrest and exercise of prosecutorial discretion by the DPP. Article 47 on the right to fair administrative action envisages that the DPP and the DCI will accord a suspect an opportunity to state their side of the story before the exercise of an adverse administrative action, like arrest and prosecution, can be mounted.

However, more concerning is the seeming determination to arrest and charge Prof. Ojienda with a criminal offence come what may. There had been repeated claims on alleged failure by Prof. Ojienda to pay taxes. Kenya Revenue Authority has engaged in high stakes litigation with Prof. Ojienda which resulted in the High Court (Justice George Odunga) quashing the tax demands by the KRA directed to Prof. Ojienda. This led to an appeal by the KRA that is pending before the Court of Appeal.

The arrest also comes in the wake of a protracted court battle between Ojienda and the taxman over tax compliance. The taxman has filed an appeal after High Court judge Wilfrida Okwany directed that KRA issue a tax compliance certificate at a time when the taxman is demanding Sh443.6 million arrears from the advocate. Ojienda had sued KRA arguing that denying him tax clearance was calculated to sabotage his race to be voted as the lawyers’ representative at the JSC.

However, that was not enough as Prof. Ojienda had to get another court order in November 2018 to bar his arrest over the disputed tax claims. A week before his eventual arrest, Prof. Ojienda had to rush to court and get orders barring his arrest by the Ethics and Anti-Corruption Commission over claims of alleged misuse of a government car.

While it is not the position of this commentary to vouch for the bona fides of Prof. Ojienda versus that of the Directorate of Criminal Investigations and the Directorate of Public Prosecutions, the sequence of events raised concern and questions whether the prosecution is being carried out in pursuit of public interest.

Of course, members of the JSC are not above the law and, without question, they must be subject to accountability and that includes being held to account where crimes are disclosed. Moreover, this commentary does not endorse legal formalism that has previously manifested itself in Kenyan jurisprudence: where the courts subvert the ‘war’ on corruption in the guise of upholding due process protections for corruption suspects. (For a classic critique of Kenyan jurisprudence along these lines see James Thuo Gathii ‘Defining the Relationship between Human Rights and Corruption’ (2009) 31 University of Pennsylvania Journal of International Law 125) Yet there is no doubt that the executive branch is increasingly targeting the JSC as a means to control the judicial branch as demonstrated in this commentary. The undermining of judicial independence should concern everyone who cares about constitutional government. This bedrock rule-of-law principle is vulnerable, and not just to direct assaults on judges but can be pursued indirectly by a government intent on removing all possible sources of constraint to interference in judicial independence, like the JSC.

When we imagine the death of the rule of law, we usually envision some dramatic scenario, such as the edict of a military dictator who has usurped power by force. Yet the same end can also be pursued through more mundane actions, like criminal prosecutions targeting judges or members of the JSC. This can be through a process of eroding constitutional norms such as judicial independence in the name of rule of law (criminal accountability) itself. It is time for everyone who shares a richer conception of pluralist democracy envisaged in the 2010 Constitution, in which the legitimate power of elected governments is subject to checks and balances, to stand up for judicial independence (and its sub-set independence of the JSC). Otherwise we may one day wake up to realize that this crucial bulwark of liberal democracy has been lost.