"It is my job to call balls and strikes, and not to pitch or bat." John G. Roberts Jnr, US Chief Justice.
The recent nominations by Mwai Kibaki of the four Constitutional Offices of the Chief Justice, the Attorney General, Director of Public Prosecution and Controller of Budget has continued to create a wedge amongst Kenyans.
Again, this division is substantially not engendered by appreciation of the law, but our tribal and political alliances with either President Kibaki or Prime Minister Raila Odinga. There is no love lost between me and either of the Principals as I have never campaigned or voted for either. It is for this reason that I state dispassionately that the four nominations were constitutional, lawful and regular.
Those opposed to the nominations are more fervent and organised than those in support. And the opponents have been given a lifeline by the ruling of Hon. Justice Daniel Musinga in Nairobi High Court Petition No. 16 of 2011 filed by Centre for Rights Education & Awareness (CREAW) and seven other activist groups.
In his ruling, which ought to be interim pending final arguments on merit, the trial judge makes several findings which in themselves are final. I disagree with the ruling and the arguments of opponents of the nominations.
The good Judge cannot declare the nominations unconstitutional before the petition is heard in entirety and on merit. On that score alone, the ruling is fatally defective ab initio. It maybe a popular ruling, but in jurisprudence, it is ex nihilo, zero!
The nominations were done pursuant The Schedule of the Constitution. Section 24 thereat in clear and unambiguous words state that the "… new Chief Justice shall be appointed by the President … after consultation with the Prime Minister and with the approval of the National Assembly." In respect of all other appointments to Constitutional Offices before 2012 General Elections, Section 29 (2) states that unless otherwise specifically prescribed "… the President shall … appoint a person after consultation with the Prime Minister and with the approval of the National Assembly." This is the embryo of the Constitutional Law on all appointments to Constitutional Offices.
The President is thus the sole appointing authority though subject to consultations with the Prime Minister and approval of the National Assembly. The offices of the Chief Justice and Attorney General worldwide are quasi-politico-judicial.
And it is for this reason that in all democracies, the nominations are left to the Heads of Government. The CJ and AG are at the apex of the intersection of the Judiciary, Executive and Legislature. No other officers occupy such strategic positions.
Democracies have in their wisdom given Heads of Government and State this leverage of appointment. For who wants a situation where a president is given a hostile CJ or AG? Imagine a situation like Italy where the Prime Minister is forever embroiled in criminal proceedings because the Office of the Prosecutor is occupied by Anti-Berlusconi people. The offices maybe independent, but personal chemistry is needed between the President and these two offices.
The President says he consulted, the Prime Minister denies. For the last three years, the two have made various appointments to the Cabinet, Parastatals and Diplomatic Service and have never been candid to us on the format and contents of their consultations.
The President, being the nominating authority says he consulted. Why should we doubt him now when we have not done so for three years when he made similar allegations? There is no agreed legal definition of "consultation."
What however court decisions have held in many countries is that for there to be said to have been consultation, there has to be actual attempts to do so. The consulting parties must have had opportunity to discuss or exchange views on the subject matter. But there ought not to be unanimity before final decision is made by the one entitled to decide.
With tremendous deference to women, the argument that the four nominations are unconstitutional because there is no woman appointee cannot lie. The Articles in the constitution outlaws discriminations based on race, tribe, religion, gender, marital status, colour, beliefs, language, health status et al.
Should all appointments at all times satisfy this criteria? Why choose gender and not race? What if there was a woman and there is no European or Arab-Kenyan? What about the other 38 tribes left out? And adherents of animist religions? We must not stretch the law to incredulous lengths. The law ought not to be interpreted to give room to all kinds of charlatans to flood our courts with useless and wasteful petitions.
If our Parliament wanted the said nominations to be made pursuant the main body of the Constitution, nothing would have been harder than say so. If the legislators wanted competitive recruitment by way of advertisement it would have said so. Certain offices are done by silent recruitment process because of their sensitive roles.
If you advertise such positions, the process will be overwhelmed with thousands of applications, 90 percent of which will be by idlers who wouldn\’t qualify for even menial jobs. And such process invites disgruntled applicants to file suits alleging discrimination. The entire process will be hijacked by side-shows. Let opponents of the nomination process show us one civilized country that advertises for these constitutional offices.
However, calling for the Commission on The Implementation of The Constitution (CIC), the Judicial Service Commission (JSC) and the Public Service Commission (PSC) to be involved in all remaining appointments till 2012 is purely for moral aesthetics and not law. I\’m a strong proponent that these three bodies be allowed to play significant roles in appointments of constitutional and other public offices set out in the Constitution because I don\’t trust both our President and Prime Minister to have the greater good for this country. Their track-records show the contrary.
Amidst our debate, we must not forget that the four nominees are highly qualified and deserving of the offices nominated to. With consternation, I have noted that there is a deliberate campaign to impugn the character and integrity of Justice Alnasir Visram and Kioko Kilukumi for the offices of CJ and DPP respectively. The allegations against them are wild, unsubstantiated and blind-sided if not outright false.
It is ironic that we accuse the President of violating the Constitution and go ahead to violate the rights of the nominees. Am grateful no one has raised a finger against my Professor and friend, Githu Muigai. Who of the opponents can light a candle to Visram, Githu and Kilukumi?
If anyone has issues with the nominees, let them table in Parliament during the approval process with the nominees being given the right to respond. That no one should be condemned unheard is a pillar of Constitutionalism and Rule of Law. Parliament will do well to allow the approval debate to proceed, the outcome notwithstanding. But any objection on the nomination based on constitutionality of the process is ill-informed, ill-motivated and a sham.
Mr Kipkorir is an Advocate of the High Court. This article was first published in the Standard on Sunday.