MOSES KURIA: State capture by the Judiciary

Nyawiri's whereabouts were reported unknown in May after reports that officers of the Ethics and Anti-Corruption Commission arrested him." /FILE
Nyawiri's whereabouts were reported unknown in May after reports that officers of the Ethics and Anti-Corruption Commission arrested him." /FILE

That judge Chacha Mwita gave himself the power to appoint Justice Mohammed Warsame as a JSC commissioner is state capture by the Judiciary and an affront to the rule of law and separation of powers.

Principal among the values of good governance envisioned in the 2010 Constitution was the concept of separation of powers and the rule of law. Another critical tenet is the Constitution is supreme and all persons and institutions, including the Judiciary, are subordinate to, subject to, and required to uphold it. Any act that violates it is invalid.

While the focus on unconstitutional acts has traditionally been directed at the Executive and Legislature, it is clear from recent decisions that the Judiciary is now treading this path. Nowhere is this clearer than the decision to appoint Warsame to the Judicial Service Commission. The JSC is a constitutional team that oversees the Judiciary. 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 (a member of JSC is a state officer) must take the oath of office.

Justice Mwita bypassed the appointment provisions by “deeming” 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 ignored clear provisions of the Constitution.

There can be no greater evidence of judicial overreach and judicial impunity than this decision. In one stroke of the 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 Warsame, it failed to see the patent contradiction.

In ‘appointing’ Warsame, for that is what Chacha did, and exempting him from taking the 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 it un-implementable, they cannot violate the clear letter of the Constitution to meet what they believe to be a righteous objective. The court could have expressed its views on the violation of the Constitution by the President or forwarded the matter to Parliament for censure.

Until the Constitution is amended, the President is the only appointing authority and a state officer must take the oath of office before they assume office. Anything done to the contrary is blatant violation of the Constitution and an affront to Kenya’s sovereignty. This decision also puts us on a slippery slope. Will the Judiciary now take actions which it feels other arms of government are obliged to take but are not taking?

This is an assault on democratic governance, separation of powers and the Constitution. 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 Maraga, your management of this issue is of equal significance as your ruling of September 1, 2017, that nullified the presidential election. We are watching