Exercising Power Under Constitution
Recently the Supreme Court of Appeal of South Africa gave a decision in a case on the appointment of the DPP—remarkably similar to the Kenya case challenging the Tobiko appointment. We can learn much from the explanations and decision of the South African case. The qualifications for appointment, as in Kenya, emphasise integrity, experience and conscientiousness.
The appointment is solely by the President who must properly scrutinize the record of the candidates. President Zuma’s appointment of Simelane as the DPP was challenged by a major political party, the Democratic Party. Among the allegations made by the petitioner included “misleading and untruthful evidence” given to an official enquiry by Simelane, other instances when he lied, his conduct in a commission of enquiry, which was “intent on advertising itself, with no harm it might do to its suspects”, and the frequent questioning by the auditor-general of the accounts of his previous departments.
The petitioner argued that whether a candidate is a ‘fit and proper’ person of integrity etc has to be assessed objectively, taking into account that he or she must discharge professional duties without fear or favour. The President’s power, however classified, must be exercised lawfully. The president had made little effort to scrutinize Simelane’s record—read his cv and talked to the minister of justice (Simelane’s friend), and otherwise relied on his own knowledge of the candidate. The president’s appointment was described as “unlawful, irrational, arbitrary, biased, based on an ulterior motive and inconsistent with the Constitution”.
The court began its judgment with an examination, at some length, of the founding principles of the constitution which included democracy, rule of law, accountability, responsiveness and openness. Of the President (with powers similar to Kenya’s) the court said that “Ultimately the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of the state, the President is obliged to obey each and every one of its commands”—and dismissed the argument that as the elected representative of the law, he was above the law. It said that to ensure a functional democratic and accountable government, all state officials are required to exercise their powers in accordance with the constitution—shifting the government from “a culture of authority” to a “culture of justification”. It concluded that all institutions of state have to be independent and to serve the people without fear, favour or prejudice.
It then turned to the functions and powers of the DPP: to prosecute or to not, and to withdraw criminal charges, instigate or direct investigations (“awesome”, “central to the preservation of the rule of law”) which had to be “exercised with the utmost integrity”. Thus the staff engaged on prosecution must themselves be people “of integrity who will act without fear, favour or prejudice”. It then examined the rule and practice of the independence of prosecution authorities in a number of states—and its centrality to fair process and the rule of law. It emphasized the importance of the method of the appointment of the DPP—such as to gain the “confidence of the public and the respect of the judiciary and the legal profession”.
This independence is not undermined, rather it is strengthened, if the appointing procedure is itself subject to judicial scrutiny. The court quoted an eminent South African judge who spoke in terms that apply equally to Kenya, “ We moved from a past characterized by much that was arbitrary and unequal in the operation of the law to a present and a future in a Constitutional State where State action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with those core concepts of our new constitutional order”.
The court said that the requirement to act rationally, fairly and in accordance with the constitution and the law entails that the legislature and the executive “are constrained by the principle that they may exercise no power and perform no function beyond that conferred on them by law”. The court held that the President’s cannot bring his subjective assessment to the task of appointment, but must be objective. The expression is not “in view of the President” but the requirement is imperative. Anyway it is hard to see how one can assess integrity other than objectively. In conclusion the court said that the qualifications for the office are “jurisdictional facts the objective existence of which are a prelude to the appointment of the DPP”.
These considerations must also apply in Kenya, to the panel which nominated a short list, to the Principals who chose and forwarded the candidate to the National Assembly, and the National Assembly which approved the candidate. If at any stage the process was contaminated by irrelevant considerations like horse trading, protecting powerful interests from the rigours of investigations or prosecutorial process, or favouritism ensuing from tribal or other affiliations, the process is faulty and the appointment is invalid (as was declared by the South African court). These principles of course apply not only to appointments of state officers, but the exercise of a whole gamut of state powers. The challenge to us is how to translate these concepts and rules into practice.
The author is a director of the Katiba Institute.