One thing that was evident throughout the constitutional review process culminating in the 2010 Constitution was the people’s involvement in making choices regarding the system of governance they desired to be subjected to.
They were no longer satisfied with leaving the decision to a select few or class; more so, having become aware that sovereign power belonged to them and that they could exercise the same directly by themselves or through their democratically elected representatives.
Further, with that awareness they delegated sovereign power firstly to Parliament and legislative assemblies in county governments; secondly, the national Executive and the executive structures in county governments; thirdly the Judiciary and independent tribunals.
Nonetheless, the people were categorical that where they had delegated the exercise of sovereign power it could only be exercised in accordance with the Constitution which was the manifestation of their will and choice.
In particular, the president as the head of state and government exercises executive authority, which is donated to him/her by the people. In line with the said authority coupled with being a symbol of national unity, there are certain powers bestowed upon the President by virtue of the office he/she holds as set out in Chapter 9 of the Constitution.
As per Article 134(1)(a) of the Constitution, some of those powers can only be performed by the elected President and no other; even in the absence or incapacitation of the elected President. One such power is the appointment of judges of the superior courts (Article 134 (2) (a)).
It, therefore, means that even the deputy president, who is the principal assistant of the president, let alone the courts, cannot appoint judges. It is a mandate purely bestowed upon the president and in the event of failure or misuse of that power, there are avenues set out by the people in the Constitution of dealing with the same.
The supremacy of the Constitution is not in dispute and Article 2(1) stipulates that all persons and state organs are bound by the Constitution. Consequently, courts in exercising judicial authority are bound by the supremacy clause that they ought to abide by.
In addition, courts quite often reiterate that “jurisdiction (authority to do something) flows from the law, and the recipient-court is to apply the same, with any limitations embodied therein. Such a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.”
It follows, therefore, that the High Court in directing the appointment of the judges by the Chief Justice was acting without jurisdiction and contrary to the Constitution.
The courts have not shied away from quashing or setting aside actions/decisions made by other state organs done without authority or contrary to the Constitution time and time again.
As the saying goes, ‘what is good for the goose is good for the gander’. Likewise, courts should abide by the Constitution and not attempt to re-write or amend the Constitution all in the name of judicial activism.
They should always bear in mind that the Constitution is a representation of the will of the people until they choose otherwise through the prescribed procedure.
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