I am deeply disturbed that the Hon Judge Chacha Mwita has
arrogated
to himself the power to appoint Justice Warsame as a JSC commissioner.
This is state capture by the Judiciary and a serious affront to the rule of law and separation of powers. It is an issue that Justice David Kenani Maraga has to address if he expects the rest of us to respect the Judiciary.
One of Kenya’s greatest achievements post-independence was the passage of the 2010 Constitution.
Among many innovative provisions, the Constitution defined several principles which would bind all State organs and the citizenry in their interactions.
Principal amongst the values of good governance was the concept of separation of powers and the rule of law.
Pursuant to this principle, the three arms of government, the Executive, the Legislature and the Judiciary were all allocated areas of exclusive competence, even as they acted as checks and balances on each other.
Another critical underlying tenet in the constitution is the principle, articulated in Article 2 and 3, that the Constitution is supreme, and that all persons and institutions, including the Judiciary, are subordinate to, subject to, and required to uphold the Constitution.
Article 2(2) supplements this supremacy of the Constitution doctrine by providing that any act done in violation of the Constitution by any party is invalid.
While the focus on unconstitutional acts has traditionally been directed at the Executive and the Legislature, it is clear from recent decisions that the Judiciary is now treading the path of unconstitutional actions.
Nowhere is this clearer than in the recent decision made by Justice Chacha Mwita in High Court Petition No 307 of 2018 on the appointment of Justice Mohamed Warsame to the Judicial Service Commission.
The JSC which is the body that oversees the judiciary is established in accordance with Article 171 and 250 of the Constitution.
Some details of the appointment process of members are set out in the Judicial Service Act.
While there have been differing opinions and court clarifications on the process prescribed by the Act, there are two issues on which the Constitution leaves no room for conjecture.
Article 250 provides that members of the JSC are appointed by the President. Article 74 provides that all State Officers (and a member of JSC is a State officer) must subscribe to the Oath of Office before they assume office.
Since he was taken through a process of election for this position, Justice Warsame was assuming office.
Justice Mwita in his decision bypassed the appointment provisions, by “deeming” Justice Warsame appointed and did away with the requirement for the Oath of Office on the basis of a contested provision of the Judicial Service Act.
His decision totally ignored the clear and unambiguous provisions of the Constitution.
There can be no greater evidence of judicial overreach and judicial impunity than this decision.
In one stroke of a pen, the Judge effectively ordered that two provisions of the Constitution be violated, an action that would be unthinkable for other institutions.
Even as the Court went out of its way to lament the President’s alleged unconstitutional act of refusing to appoint Justice Warsame, it failed to see the patent contradiction.
In “appointing” Justice Warsame, for that is what the Judge did, and exempting him from taking an oath of office, he was acting beyond his constitutional competence and in violation of the same Constitution, he was purporting to protect.
It is a cardinal principle of constitutional interpretation that even where the Courts believe that obeying the constitution produces an absurdity, or renders the constitution un-implementable the court cannot violate the clear letter of the Constitution to meet what it believes to be a righteous objective.
The Court could express its views on the violation of the COK by the President or forwarded the matter to Parliament for censure.
Until the Constitution is amended, the President is the only appointing authority.
Until the Constitution is amended, a State officer must take the Oath of office before they assume office.
Anything done contrary to these constitutional provisions is a blatant violation of the Constitution and an affront to Kenyan’s sovereignty.
This decision also puts us on a slippery slope. Will the Judiciary now take actions which they feel other arms of government are obliged to take but are not taking?
This is an assault of democratic governance, separation of powers and the Constitution generally. Kenyans must say No loudly.
No institution should be allowed to assault the Constitution, however well-meaning and pro-people it believes itself to be.
It would inevitably lead to a free for all assault on the rule of law. That we cannot even begin to countenance.
To the Chief Justice, Hon David Kenani Maraga, your management of this issue is of equal significance as your ruling of1st September 1, 2017 that nullified the Presidential Election. We are watching.
The writer is the Member of Parliament for Gatundu South