n 23rd July and 13th August 2019, the Judicial Service Commission ( JSC), recommended persons for appointment as judges of the Court of Appeal, Environment and Land Court, and Employment and Labour Relations Court, and forwarded the names to the President for appointment.1 Almost a year later the President has not appointed the judges. This is despite the existence of a court order requiring him to appoint the nominees. On 10th June 2020, the Chief Justice Hon. David Maraga addressed the press saying that the refusal of the President to appoint the recommended judges was a violation of the Constitution and that amounted to sabotaging the Judiciary. The Attorney General responded by saying that the President had adverse reports on some of the persons recommended for appointment as judges and that appointing them would be an abdication of the President’s duty. The controversy over the appointment raises the question of the role of the President in appointment of judges and whether the President can supervise the Judiciary.
Separation of Power The principle of separation of power states that there are three arms of government namely the legislature, executive and judiciary.2 Each arm exercises checks and balances over the others.3 The principle is reflected in Kenya. Article 1(3) of the Constitution states that the sovereign power of the people is delegated to parliament and the legislative assemblies in the county governments; the national executive and the executive structures of the county governments; and the Judiciary. It means the Judiciary exercises power that is derived from the people.
Constitutional Protection of Judicial Independence The Constitution of Kenya, 2010 herald a new chapter in Kenya regarding judicial independence. It was enacted in the backdrop of an opaque judiciary which many Kenyans had lost faith in.4 The 2007/08 post-election violence marked a dark chapter in Kenya’s history. The opposition rejected the Presidential election results and refused to go to court citing lack of judicial independence.5 The same issue was reiterated by the Taskforce on Judicial Reforms which observed that the Judiciary did not meet the expectations of the people and was in dire need of reforms.6 For people to have confidence in the Judiciary, they need to believe that the Judiciary is independent.7
Institutional and Personal Independence of Judges Article 159(1) of the Constitution states that “judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.” Article 160 states that in the exercise of judicial authority, the judiciary shall be subject to the Constitution and the law and not direction from any person or authority. It provides various protections for judicial officers to protect their independence.
Judicial independence refers to both the personal independence of the judges and the institutional independence of the Judiciary. Institutional independence protects the Judiciary from interference from other arms of government while personal independence refers to the ability of a judge to make decisions without any interference.8 The Constitution protects institutional independence of the Judiciary by providing that it is only subject to the Constitution and the law.9The protections to ensure the personal independence of judges include: that the office of a judge of a superior court shall not be abolished while there is a substantive holder in office,10 the remuneration and benefits payable to a judge shall not be varied to the disadvantage of that judge,11 that a member of the Judiciary cannot be sued for anything done in good faith in the performance of their judicial function.12
Financial Independence The Constitution established financial independence of the Judiciary through the creation of the judiciary fund. Article 173(1) establishes the judiciary fund to be administered by the Chief Registrar of the Judiciary. The fund is based on the estimates that the Chief Registrar submits to the National Assembly for approval each financial year. The funds approved are paid directly to the Judiciary Fund and that gives the Judiciary autonomy on the day to day usage of its funds. The Judicial Service Commission Article 171 establishes the JSC. The commission consists of the Chief Justice, who is the chairperson of the commission, one Supreme Court judge, one Court of Appeal judge, one High Court judge and one magistrate, the Attorney General, two advocates elected by the Law Society of Kenya, one person nominated by the Public Service Commission, one man and one woman to represent the public, appointed by the President with the approval of the National Assembly, and the Chief Registrar of the Judiciary who is the secretary of the commission.
Article 172 provides that functions of the JSC are recommend persons for appointment as judges, reviewing and making recommendations on conditions of service of judges and judicial officers, appoint and discipline judicial officers.
Judicial Accountability Accountability “implies the necessity to justify one’s past behaviour.”13 There are different views about the level of accountability of the Judiciary and how to balance that with the judicial independence. The question is whether Justin Muturi, Speaker of the National Assembly
judicial independence and accountability are competing concepts. According to Burbank, the two concepts are complementary.14 Issues such as the level of executive or legislative control regard judicial accountability.15 There are arguments that judges are held accountable through delivery of judgments in open court and the right to appeal judicial decisions in higher courts.16 This line of argument posits that implementing other forms of external accountability would threaten judicial independence. Those of the contrary position argue for external measures such as use of Parliamentary select committees to hold judges accountable.17
In Kenya, the Constitution provides mechanisms through which the Judiciary can be held accountable. Article 10 provides that one of the principles that govern state officers is accountability. Judges being state officers are, therefore, bond by that principle. The Constitution also provides for the grounds and mechanisms for removal of judges. Article 168 provides the grounds for removal of a judge are: inability to perform functions due to mental or physical incapacity, breach of code of conduct for judges, bankruptcy, incompetence, gross misconduct or misbehavior. The removal of a judge can be initiated by the JSC either on its own motion or on a petition by any person to the JSC.
The issue of accountability of the Judiciary has been a born of contention in the country. In Judicial Service Commission v Speaker of the National Assembly & 8 others,18 the High Court stated that JSC is subject to lawful and proper oversight by Parliament. However, in carrying out its oversight mandate, Parliament must respect the independence of JSC. It cannot micromanage the commission. By summoning the JSC commissioners over their suspension of the Chief Register of the Judiciary, Parliament’s action was an attempt to direct and control the JSC in the exercise of its mandate and therefore the purported oversight was improper.
Whether Judicial Oversight is Adequate While Parliamentary decisions can be challenged in court, the court decisions cannot be challenged in any other forum other than the courts. That means that a rogue judiciary can be a threat to the rule of law. The Constitution, therefore, sets the means for holding the Judiciary accountable. First, parties can always appeal court decisions that they are dissatisfied with. This is, however, not applicable to Supreme Court decisions since the Supreme Court is the highest court. The fact that court decisions are published and can be appealed would motivate judges to be accountable in their decision-making.
Second, the JSC has the oversight mandate over the conduct of judges. The commission can commence the process of removal of a judge on its own motion or following a petition. The JSC is composed of diverse persons including the Attorney General and representatives of the public. The diverse composition allows it to properly oversight judges.
Third, the JSC is subject to Parliamentary oversight. Article 248 of the constitution lists the JSC as one of the constitutional commissions. All constitutional commissions are subject to parliamentary oversight. Article 251(2) provides that a person desiring to remove a member of a commission may present a petition to the National Assembly setting out the alleged facts that constitute the grounds for removal. The Parliamentary oversight ensures that the commission acts in accordance with the constitution and the law. Role of President in Appointment of Judges Article 166(1) provides that the President shall appoint the (a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission ( JSC), and subject to the approval of the National Assembly; and (b) all other judges in accordance with the recommendation of the Judicial Service Commission. In Adrian Kamotho Njenga v Attorney General, Judicial Service Commission & 2 others19 the High Court stated that the President is constitutionally bound by the recommendation of the JSC. The impact of the judgment is that the JSC list on judicial nominees is final and the President’s only role is to appoint the judges. In the Adrian Kamotho petition, the Head of Public Service claimed that the reason the President had not appointed the nominated judges was because some of them had tainted credibility. He opined that it would be a dereliction of the President’s constitutional duty to appoint such persons. The question that this brings is whether there are mechanisms to ensure that selection of judges is above board or can the President purport to vet the judicial nominees? can follow the interviews and give their opinions. Prior to the interviews the commission publicizes the shortlisted candidates and calls upon members of the public to submit any issues that they may have against the candidates.
Conclusion The paper finds that the provisions in the Constitution of Kenya, 2010 were meant to protect the independence of the judiciary and to limit the role of the executive. The President’s role in the appointment of the judges is, therefore, ceremonial. While there is need for accountability in the Judiciary, the Constitutional framework provides adequate measures for ensuring that the Judiciary is accountable, and that the selection process of judges is above board. The President has no power to vet the judicial nominees forwarded to them by the JSC. Where the President or any other person has credibility concerns against any candidate for the position of judge, the concerns should be forwarded to JSC at the time of vetting. Even where the same is not considered, the person can petition the JSC for the removal of the judge.