By Gibson Kamau Kuria, SC
In every democracy, it becomes necessary from time to time for the Judiciary to assert, in a robust manner, its independence when challenged by either of the other two arms of the government i.e. the Legislature and the Executive.
In India, for instance, the Supreme Court was in 1975 called upon to rule on the constitutionality of an amendment which the Indian Parliament had passed after the election of the late Prime Minister Indira Gandhi was nullified by a court. The court held that the Constitutional Amendment No. 39 of 1975 which purported to take away the power of the court to adjudicate on election disputes touching the Prime Minister and the Speaker of the National Assembly and validate the election of the Prime Minister was null and void.
This was in Indira Gandhi v Raj Narain AIR (1975) SC 2299. The time for the Kenyan judiciary to assert its independence which has been challenged by the National Assembly through issuance of summons to members of the Judicial Service Commission has come.
There are three ways in which the members of the Judicial Service Commission may handle the illegal summonses to appear before the Justice and Legal Affairs Committee which were issued to them last week and robustly assert the independence of the Kenyan judiciary which is protected by Chapter 10 of the Constitution. Without that independence protection of the rights of the individual is not possible.
The first one is to ignore the summons altogether because they are null and void and of no legal effect. The second way is for the Chief Justice Dr Willy Mutunga, in his capacity as the Chairman of the Judicial Service Commission to write to the Speaker of the National Assembly and Hon Samuel Chepkonga, the Chairman of the Justice and Legal Affairs Committee, and explain to them why the Judicial Service Commission is not permitted by the Constitution to honour the summons of the kind which that House has issued.
The third way is to follow the example of former Hon Chief Justice Alfred Simpson when he was summoned by the Judicial Commission appointed to Inquire into allegations involving Charles Mugane Njonjo in 1983 to explain why he handled the treason case of Andrew Muthemba the way he did. He appeared before that commission explained that according to both Evidence Act and the Constitution, he could not be asked or be compelled to testify on how he discharged his judicial duties. Section 129 of the Evidence Act provides that ‘no judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any question as to his own conduct in court as such judge or magistrate or to anything which came to his knowledge in court as such judge or magistrate’.
Former Chief Justice Alfred Simpson is listed as witness no. 58 in the Report of the Judicial Commission appointed to Inquire into allegations involving Njonjo. A member of the Judicial Service Commission cannot similarly be summoned to explain what he did on 19th August, 2013. The Chief Justice will appear before the House on whose behalf the Committee is acting and explain that under Article 168 of the Constitution, his commission is the constitutional organ which Kenyan people have established to “promote and facilitate the independence and accountability of the judiciary”. This Article explains this stand should be taken.
The Justice and Legal Affairs Committee of the National Assembly, made a mistake in summoning members of the Judicial Service Commission to appear before it and explain how they exercised their constitutional functions when they suspended Mrs Gladys Boss Shollei, the Chief Registrar of the Judiciary on 19th August, 2013. It is exercising a pretended power to make the Judicial Service Commission accountable to the Kenyan people. The latter have not given that power to it.
Article 160 of the Constitution has conferred upon the Judiciary independence to enable it to protect the basic rights of every individual whilst Article 172 of the Constitution has vested in the Judicial Service Commission alone the power to promote and facilitate the independence and accountability of the Judiciary. Under that article the commission alone has the power to appoint and remove from office such administrative officers as the Chief Registrar of the Judiciary.
Those summonses are therefore null and void. The members of the Judicial Service Commission will be acting within their powers if they just ignore the summonses. The Justice and Legal Affairs Committee has also made a mistake in threatening that it will not view favourably the Judiciary’s next budget when presented to the House and further it will, or may, like the High Court to commit them to jail for refusing to honour the summonses.
It does not have such a power. Section 23 of the National Assembly (Powers and Privileges) Act vests in the Chief Magistrates Court the power to punish those found guilty of disobeying a committee’s summons. Mrs Shollei made a mistake in honouring the summons and addressing the committee. She should have ignored it. She divulged to the country the normal tensions of her institution. She described to that committee the unhappy relationships which she has had with Hon Justice Warsame, Mr Ahmednasir Abdullahi and Ms Emily Ominde. Dirty linen is being washed in public. This should stop. Damage to the Judicial Service Commission has been occasioned. More damage may be occasioned, if the matter is not handled properly. Public confidence in the country’s justice system should be protected through a strict adherence with the Constitution.
The Justice and Legal Affairs Committee of the National Assembly is, like the Judicial Service Commission, an organ of the Constitution. All organs were designed to work together for the people. Each was given its task. It is that committee which recommends to the whole House for appointment or rejection the person nominated to serve as either the Chief Justice or the Deputy Chief Justice.
It does not recommend for appointment judges of the High Court, Court of Appeal and other judges of the Supreme Court. It is also the committee which scrutinizes the budget presented by the Judiciary annually and recommends the appropriate action to the whole House. The issue now is not whether the Judicial Service Commission can and should act independently of the Justice and Legal Affairs Committee of the National Assembly and refuse to be accountable to it but how it should discharge its duty “to promote and facilitate the independence and accountability of the Judiciary.”
Chapter 10 of the Constitution which Kenyans adopted through a referendum in August 2010 embodies the principles upon a Judiciary in every democracy acts on. One of these is judicial impendence which is written into Article 160 of the Constitution. Article 160(1) provides that “in the exercise of judicial authority, the Judiciary as constituted by Article 161 shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.”
That chapter vests in the Judicial Service Commission alone the power to control or direct the Judiciary. There is no provision of the Constitution or of any Act of Parliament which confers on the Justice and Legal Affairs Committee of the National Assembly power to control or direct the Judicial Service Commission or the judiciary as a whole as that Committee wants to do. Both Eric Mutua and James Mwamu, the Chairman of the Law Society of Kenya ,and President of the East African Law Society, respectively, were right when on 22nd August 2013 they asked that committee to stop interfering with affairs of the Judicial service Commission. As I understood them, they did not say that no action should be taken by the Judicial Service Commission against Mrs Shollei if she has breached her contract of employment. They were demanding that the Constitution be adhered to.
The security of tenure all judges of the High Court, Court of Appeal and Supreme Court is first secured by the appointment and removal process. Unlike the position under the former Constitution, where the President was not obliged to act on advice of the Judicial Service Commission when appointing a judge, under the current Constitution, the President appoints only those persons recommended to him by the Judicial Service Commission.
Politics has been removed from the appointing process. In cases of proposed removal of judges, the Commission must, under Article 168 of the Constitution inquire into the matter, satisfy that a basis for removal exists and make a recommendation to the President that a tribunal to inquire into the matter of removal be appointed.
The commission under Article 172(1) (b) determines the remuneration and terms of service of all employees including judges. The commission under the same Article also ensures that there is administrative independence.
The Chief Registrar of the Judiciary and other staff are employees of the Commission. They are appointed and disciplined by the Judicial Service Commission. Article 172 (2) of the Constitution provides that its duties include appointing, receiving complaints against and removing from office or otherwise disciplining registrars, magistrates and other judicial officers.”
One finding frightening or horrifying is Hon Chepkonga’s wholly unwarranted, belligerent and uninformed approach to the discharge by the Judicial Service Commission of the duty under Article 168 of the Constitution, to “promote and facilitate the independence and accountability of the judiciary” in the case of Mrs Shollei.
He has warned that by not honouring his committee’s summonses, the members of the Judicial Service Commission “will be acting against their interests”. Hinting at his committee’s refusal to approve the judiciary’s budget, in future, if the summonses are not honoured he asked, “By snubbing our summons would they be indicating that they will not appear before Parliament even for issues regarding their funding?” He is also threatening that his committee will punish members of the Judicial Service Commission who do not appear before it. He said, “When we sit we are conferred with powers of the High Court and our summons have to be honoured.”
(Gibson Kamau Kuria is a Senior Counsel)