On 18th January 2018, Justice Chacha Mwita of the High Court, rendered a landmark decision, in Petition 307 of 2018, Law Society of Kenya v Attorney General and the Chief Justice, on the failure by President Uhuru Kenyatta to formally appoint and gazette Justice Mohamed Warsame as a Commissioner of the Judicial Service Commission (JSC).
The High Court made a declaration that the President’s failure to appoint Justice Warsame as a Commissioner of the JSC violates the Constitution. The Court further issued a declaration that Justice Warsame be deemed to have been appointed as a commissioner of the JSC, and directed the Chief Justice and the JSC to facilitate Commissioner Warsame to take his position in the JSC.
This is unchartered territory for Kenya, but if the “Warsame affair” has taught us anything it is that our institutions, as well as the checks and balances built into the constitution, are more than capable of rising to the challenge. It is important to note that the High Court ruled that the President violated the Constitution by failing to uphold, defend and respect the supreme law of the land. This judgment is a vindication of our constitutional democracy. The judgment does this by affirming that consequences arise from failure by anybody or any governance institution to act according to the prescripts of the Constitution.
While the verdict by the High Court is a damning indictment of the President, it is a timely reminder that the post-2010 constitutional transition is a lot stronger than is often acknowledged. Under immense strain, the checks and balances embodied in the Constitution are working. This is evident with the High Court protecting the Constitution and coming out strongly in condemnation of those who fail to uphold the values and principles of the Constitution. The judgment reaffirms the timeless quip by Justice Frank Shields in Marete v Attorney General (1987) that: “The Constitution of the Republic is not a toothless bulldog nor is it a collection of pious platitudes.”
The judgment shows that in Kenya nobody is above the law – our democracy has institutions that function effectively. This is something that all Kenyans can celebrate. This publication welcomes the judgment by Justice Chacha Mwita as a necessary step in defence of our democratic institutions and a commitment to the protection of the rule of law. More than anything, it’s a victory for Kenya’s democracy and the hope that our country can regain the ideals and hopes that accompanied the rebirth of the nation in August, 2010. We call on President Uhuru Kenyatta and other state and public officers to internalize the lessons from this judgment and to ensure that such a travesty of the rule of law is never repeated.