Is the Judiciary, Executive standoff a misread of the Constitution?

Last month, Prof Makau Mutua hit out at Attorney General Paul Kihara over his statement responding to Chief Justice David Maraga on appointment of judges.

Mutua hit out at the AG on Twitter, saying he was deliberately misreading the Constitution.

His tweet was supported by Elgeyo Marakwet Senator Kipchumba Murkomen  https://twitter.com/kipmurkomen/status/1270416931330207746

Is it true that AG Kihara’s response was a misreading of the constitution?, the Star tried to explore on the matter

How did it start?

There has been a standoff between the Executive and the Judiciary over the appointment of 41 judges recommended by the Judicial Service Commission-JSC.

While the Judiciary has been accusing the Executive of crippling its services by not appointing the judges, the Executive has maintained it will not act as a rubber stamp to put in office judges with integrity issues.

 On June 8, the Star ran a story indicating that CJ Maraga said Uhuru's refusal to swear in the judges has contributed to the backlog of cases currently being experienced in the Judiciary.

"You know I have respect for you as our President, you also know that I have unsuccessfully sought an appointment with you to sort out these issues but it has been futile leaving me with no option but to make this public," he said.

Maraga asked Uhuru to direct the AG to begin the process of satisfying the decrees issued by the courts.

"The President's disregard of court orders doesn't bode well for our constitutional democracy and is potentially a recipe for anarchy," Maraga said.

A day later, AG Kihara Kariuki  hit back at Chief Justice David Maraga saying his public attack on President  Uhuru Kenyatta was a shocking move.

The AG said the government believes in the established channels of communication and not playing to the public gallery.

"We shall respond to him directly with respect to issues which are not subject to ongoing cases. The Executive will not discuss cases before the court," he said.

Noting that cases can't be discussed in media briefings, Kariuki said Uhuru will not abdicate his role to appoint persons tainted with integrity issues.

The response by the AG was however not taken lightly within several quarters which came to the defence of the CJ.

It is from here that Prof. Makau Mutua posted on Twitter https://twitter.com/makaumutua/status/1270386233760518144 indicating that the AG was misreading the constitution. 

The Star sought to get an understanding of the impasse by getting comments from constitutional experts and lawyers.

Former Attorney General Githu Muigai said though as a retired officer it is bad to want to criticize or advise  his successors, what is happening at the Judiciary is not new but a problem that has existed for years.

He said in most incidences Judges are interviewed but when names are forwarded to the president, he doesn’t appoint.

“When it happened, we used a confidential back route discussion that unlocked the stalemate and in my view that is what ought to have happened,” he said.

Former Chief Justice Willy Mutunga said the Judiciary has been at crossroads after the 2010 constitution marred by the interests of the executive

He said Political leadership remains a major challenge to the judicial process that has brought forth such standoffs.

Mutunga said apart from the Chief Justice and the Attorney General, all other judges are subjected to a public appointment and interviews by the JSC.

The retired CJ said the president is directly represented by the AG as a commissioner of the JSC, chairperson of the public service commission and two members of the public who are directly commissioned by the president himself.

According to him, in normal circumstances when JSC recommends, the president ought to appoint.

“The president has always been cautious not just to act as a rubber stamp. When names are forwarded to him, he does instruct the NIS to investigate and file a report,” Mutunga said.

Mutunga said that in 2015 when the same happened, he by himself sought a meeting with the president not through proxy but face to face.

Mutunga said while the president must be supported not to act as a rubber stamp by just swearing in, he needs to be part of the whole process.

Former Justice Minister Martha Karua said article 166 clearly outlines that the appointment of judges is the role of the president after recommendations by JSC.

She said Article 3 however empowers the president to uphold constitutionalism.

She said though the constitutions advocates for independence of institutions, information sharing between judiciary and executive is key.

“All I can say is the stand off is as a result of communication gone wrong, by virtue of positions they share, the AG and CJ must be in constant communication. If they cannot collaborate then leadership failure manifests,” Karua said.

Rarieda Member of Parliament and a seasoned lawyer Otiende Amollo in his response said, “While CJ is right to insist on appointment of CA Judges, and executive wrong, a letter rather than a press conference would have sufficed”.

According to the lawyer, it was evident that  AG’s advice to the Executive on the issue is wrong.

Constitutional lawyer Bobbi Mukangi said it is sympathetic to CJ Maraga and courts  insofar as their interpretation of Article 166 (1)(b) of the Constitution is concerned. 

“It is the one that provides that the President shall appoint judges on the recommendations of the Judicial Service Commission (JSC),” he said.

Mukangi said vicariously, through the AG (and to an extent through the two representatives of the public appointed by the president) the executive has a voice in the exercise. 

He said the resolutions of the JSC, in a sense, have the input of the executive by virtue that the executive is represented by the AG, Chairperson Public Service and two appointed members of the public.

“The head butting between the different arms of state is theoretically and deliberately envisaged because they are supposed to check and balance each other. However this must be done to the extent that the constitution permits,” he said.

He added, “The failure to repair the current al fresco duel hurts Kenyans most (not the President, AG or CJ, it constructively contributes to perceptions, local and international, that Kenya cannot efficiently manage its state affairs, disputes included”.

What does the constitution say

Chapter 10 of the constitution clearly outlines what ought to happen on appointment of the judges.

According to the constitution, the Court of Appeal shall be appointed from among persons who have at least ten years’ experience as a superior court judge or at least ten years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal fields.

Such individuals must however have a high moral character, integrity and impartiality.

VERDICT

The Star in its verdict begs to borrow from sentiments of former Justice Minister Martha Karua that the standoff is a result of communication gone wrong.

On the first ground is that the Executive cannot exist without the Judiciary and vice varsa. The CJ and the AG need to be in constant consultation not through proxy but face to face to iron out any issues that may cripple service delivery.

On the second ground that the AG is a commissioner at the JSC. Alongside the chairperson of the public commission and the two appointed members of the public, they fully represent the executive during the interview process. How is it then that they can sit through the entire process and fail to raise the integrity issues raised later?

Matters of the law are subject to different interpretation by different advocates thus the question as to whether AG Kihara misread the constitution is neither here nor there

In this view, the current standoff is not hurting the CJ, AG or the president but the common people. The two arms of government should simply strive to read from the same script.