When reading about constitutional events or crises in other countries, I tend to ask myself what would happen here.
I imagine many Kenyans often wonder whether things are different somewhere else, why they are different from here and whether the constitutions are like ours. And even if one country’s constitution is better than another’s.
Kenya recently appointed a new Chief Justice, South Africa’s process, as I write, is not quite finished, and in the United States, President Joe Biden has undertaken to submit the name of an African-American woman for appointment to the Supreme Court in a few weeks’ time.
All these appointment processes have some involvement of politicians, but otherwise are very different.
AMERICAN PROCESS
This is of course the oldest – and has not changed in the formal law since the Constitution was drafted in 1787.
It was designed to give the main role to the President, but with a bit of a restraining hand from the Senate, which has to approve the appointment. In the UK at that time senior judges would have been appointed by the King (or rare Queen) alone, so the involvement of the Senate was an innovation.
In reality the system has undoubtedly changed a great deal. The Senate is supposed to be a body of older, and presumably wiser, people. When the Constitution was adopted, there were no political parties as we know them today. Indeed “factions” were viewed with some suspicion.
But now, the process has become intensely political, indeed party political Almost every member of the Supreme Court is thought of as conservative or liberal. It is the hope of every President to be able to appoint enough members of the court to influence its decisions well after he (so far always he) has gone. President Donald Trump nominated three. This is not a record but it is unusually many for a single term President - a third of the court.
Of course, if the political party make-up of the Senate is unsympathetic to the President, he may have found it harder to get his choices approved. Apparently, the electoral system — in which each of the 50 states has the same number of senators regardless of their population — has led to the Senate being disproportionately Republican for much of the time.
And the general dominance of the Senate by Republicans, it is suggested, has meant that, in order to stand a chance of getting their candidates through Senate, Democratic presidents have had to put forward moderate candidates, while Republican presidents can put forward legal extremists
So far, since he took office, however, Biden has got all his considerable number of judicial nominees through the Senate, despite half its members being Republicans.
There is no Judicial Service Commission in the States.
SOUTH AFRICA
The South African Judicial Service Commission has just passed its recommendations to the President. This process has raised quite a storm. Criticism has centred on the JSC.
First it misunderstood its role. For other appointments its role may be more central, but for Chief Justice its role is to be consulted by the President, which, commentators say, would mean giving its views on each candidates, but not ranking them or hobbling the President’s ultimate decision.
(Apparently most previous appointments of South African Chief Justices under the present system have involved the President just consulting the JSC on one name - his choice. This seems to fall rather short of full consultation.)
Second, the JSC seemed to have no real conception of the qualities it was looking for in a Chief Justice.
Third, the quality of the interviews was castigated. One issue was the sexist way they treated the only women candidate (though they did end up ranking her first) and the whole issue of a woman chief justice. Another was, as one commentator put it, that “the politicians on the JSC seem to use its interviews as a platform to air their grievances, relitigate settled matters and score political points.”
Though Kenya looked to the South African Constitution to some extent on this topic, there are significant differences. The South African JSC is very large and includes six MPs — at least three opposition MPs — all chosen by the National Assembly, four members of the rough equivalent of our Senate (but probably less political than our Senators), and four people chosen by the President after consulting the leaders of all the parties in the National Assembly.
These people well outnumber the “legal” members, meaning judges, lawyers and a law teacher. There is also the Minister responsible for justice (there is no Attorney General).
KENYA
In Kenya, the JSC does rank the candidates for Chief Justice. Indeed, it actually submits a single name to the President. An attempt to change the law to make the JSC submit three names for the President to choose one was declared unconstitutional by the courts.
Our JSC has five Judiciary members (the Chief Justice plus four other judges/magistrates elected by their peers). There are also two practitioners. And someone nominated by the Public Service Commission. The only acknowledged politician would be the Attorney General – though the President appoints two people to represent the public, a power which he has sometimes used to appoint politically linked people. Only these two people would be non-lawyers.
The original idea of such an appointment applied when the president was to be largely ceremonial and a true symbol of national unity. It seems less appropriate when the President is the head of government. The first constitution draft – in 2002 – would have had three people nominated by civil society for this role.
However, the Kenyan Chief Justice must be approved by the National Assembly (not, of course a theoretically older and wiser chamber).
In the event, the Chief Justice was said to have been treated deferentially by the JSC (not necessarily a good thing). And she did not have a rough ride before the National Assembly either. They asked (generally) appropriate questions but did not really probe her answers. Their role is a bit limited – they were not redoing the interview, but are required to focus on “academic credentials, professional training and experience, personal integrity and background.” Unfortunately, the issue that seems most to engage the committee was Martha Koome’s gender. Did she believe the system was patriarchal? Was she a feminist? Were the men going to have to fear her decisions for 10 years, since she could be CJ for that long? A depressing performance. Would they have asked equivalent questions of a man?
REFLECTION
There are no doubt pros and cons to each system. One might say that the US approach is allowing Biden to appoint a much more diverse group of judges – in terms of ethnicity and gender, as he intends with his Supreme Court nominee. On the other hand, a Trump can do the opposite.
For Kenya, I believe it was right to give the President little role. In fact, President Uhuru Kenyatta has so much resentment and suspicion of the Judiciary it is hard to imagine his making a decision without irrelevant factors creeping in. It would not be a matter of Chief Justice appointments swinging wildly between ideological positions perhaps — ideology does not figure much in Kenyan politics, nor in Kenyan court decisions.
No system is perfect – ours has given rise to concern about whether practitioners who are involved in judicial appointments should then be able to appear before their appointees.
But overall our system does seem best for us. I am also glad our JSC is not politician-dominated like the South African.
When thinking about governance developments in another country, do not assume that constitutional provisions for a particular situation will be the same as we are becoming used to, They may be very different.
And even provisions that look similar are likely to work differently in a different environment. How parties work, how individuals work (especially where they are so central as in the US process), and the general political environment – the political culture – will make a great difference.
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