Uhuru not appointing six judges finds cover in Constitution

A chorus of scholars, legal practitioners, politicians, civil society and even newly minted CJ Koome and former holder of that position Dr Willy Mutunga have all condemned or  protested President Kenyatta’s refusal to appoint six justices to the appellate court.

The six were among 41 judges the Judicial Service Commission found suitable for the appointment.

Former CJ Mutunga went into details why the President’s action is an affront to the Constitution, the rule of law and a  return to impunity. 

The irony is, this is precisely the charge many leveled against Mutunga himself and the Supreme Court in 2013 when they tossed out Raila and AfriCog’s petitions challenging the presidential election of that year. They rendered what is no doubt the worst decision in the Court’s history and for decades to come.

Irked by a Star reporter who reminded Mutunga this will be his legacy, the former Chief Justice shot back,“I gave extra-judicial speeches on all national judicial and political issues. I wrote numerous scholarly articles. I gave lectures on the transformation of our Judiciary in many places over the globe.”

None of that changes the fact the 2013 petition decision will forever taint Mutunga as having presided over the court’s worst decision.

Mutunga is now letting Uhuru have it and his letter of rebuke is stinging to be sure.

However, much as Mutunga following the wicked 2013 decision, Uhuru can find logic and cover in the law to explain that his decision to exclude the six judges is not all that evil or against the law as it is being portrayed.

The Constitution provides in Article 172 that the Judicial Service Commission (JSC) is to “recommend” to the President persons for appointment as judges. In July 2019, the JSC interviewed and selected 41 judges and recommended them for appointment by the President. The President did not make the formal appointments until a few days ago.

In making the appointments, however, the President left out six judges who remain in limbo and because they were not formally appointed their future remains bleak.

A reasonable interpretation of this Article 172 of the Constitution is to say the President is not obligated to appoint a candidate or candidates recommended by the JSC. This is because the very use of the verb that the JSC is to “recommend,” suggests their recommendation is merely that—namely, a recommendation the President can adopt or reject.

One can argue this is only true to the extent Parliament has not acted because in Article 166, the President is directed—with no room for exception—to appoint a candidate or candidates that Parliament has approved. The adjective used there is “shall,” meaning, the president has no leeway but to appoint the JSC nominee or nominees approved by Parliament.

That would be a legally sound but not dispositive argument.

In rejecting the six judges the President did not appoint, the head of state offered as his reason "integrity issues" the president said have come to light from the National Intelligence Service and other security agencies.

In rebutting this, Mutunga argued that the place for any derogatory information against any judge applicant is with the JSC, not the presidency.

Both the President and Mutunga are correct under the law. If a matter of integrity adversely impacting a nominee comes to light long after the JSC and Parliament have acted on the nomination, the President is well within his constitutional duty to stop that nomination from going forward.

On the other hand, now that the President has raised these grave concerns about the integrity of these judges, the solution is not in forcing the President to appoint them as that would be absurd.

Rather, the solution is for the JSC to revisit the nominations and either re-nominate or find any or all these judges not suitable if the President brings forth the evidence to sustain such a finding.

Samuel Omwenga is a legal analyst and political commentator.