The recent judicial appointments to the Court of Appeal by the President, upon recommendations of the Judicial Service Commission, stand in sharp focus for their omission or lack of consideration of any of the judges from these specialized courts at Article 162. The distinctiveness of these courts was a matter of deliberate constitutional design to deal with historical concerns as well as develop a capacity to deal with the issues entailed in labour and land in a more direct and specialized way. Therefore, the law and principles which govern the selection process and criteria for appointment of judges to the Court of Appeal and the Supreme Court must acknowledge the fact that the need for diversity in those courts must of necessity include the membership of specialist courts.
The failure to incorporate Specialist Court judges in the recent promotion to the Court of Appeal is not only likely to demoralize the Specialist Court judges but also deny the Court of Appeal, Kenya’s second highest apex court valuable expertise the Specialist court judges bring on board with regards to their courts’ jurisdiction. The need to have specialist court representation can be justified on the grounds that, whereas the Constitution has explicit general requirements on the appointment of judges at Article 166, this provision says very little, perhaps nothing, about the kind of candidates that are appointed to the Court. The finer details, the informal norms that are used in making the appointments have the potential of evolving and being part of constitutional rules that govern who will be considered fit and eligible for appointment. Therefore, as part of the institutionalization of informal norms that may form part of the Constitution, it is important to take cognizance of the need to have Specialist Court representation in future appointments as part of constitutional law development and norm formation. The tussle for the custody of the apex courts is always going to be part of Kenya’s constitutional tapestry and as such, it is important for the Judicial Service Commission(JSC) to be alive to the fact that the judiciary is considered the last bastion of integrity, in a country famous run-away corruption and crippling malgovernance.
The JSC should ensure that all stakeholders in the solemn function that is judicial appointment feel that the processes are transparent, fair and all-inclusive and that diversity is reflected in appointments. In an act of great faith and trust, the people of Kenya in the year 2010 bequeathed to its judges the product of their great labours: The Constitution. The Constitution envisages that the Courts be ‘the sentinel on the qui vive’ (watchful guardian of fundamental rights of citizens), to employ the term used by the Supreme Court of India in the case of State of Madras v. V. G. Row, 1952 SCR 597. Public trust reposed in the Courts demand that the very best must emanate from them in the form of judicial adjudication; intellectually brilliant, legally and logically sound.
In order for that impact to be made in the qualitative aspects of judicial adjudication, especially at apex court level, the specialist court capacity and advantages that accrue thereto cannot be wished away. The need is urgent to ensure that the Specialist Courts and their membership are not made to feel like the lesser children of the judiciary and as such, it is important to ensure that in catering for diverse interests in the scheme of judicial appointments, the Specialist Courts are not peripheralized.
Member, Law Society Of Kenya Public Interest Litigation Committee
Member, East Africa Law Society Rule of Law Committee
Managing Editor, The Platform for Law, Justice and Society
Adjunct Lecturer, University of Nairobi
Specialises in constitutional and administrative law litigation. He has as handled numerous cases in these areas, including representing the Law Society of Kenya in 2019 in a petition concerning the appointment of judges, and two petitions on arbitrary arrests.