GIBSON KAMAU KURIA, SC
The parliamentary committee on Justice and Legal Affairs needs to change its mind set. The new Constitution, unlike its predecessor which the Kenyans ushered out, through their votes on August 4 belongs to the Kenyan people as a whole – not the current or future parliaments.
Parliament is not allowed to amend it as it wishes or do whatever it pleases with it. It allocates different powers to different constitutional organs. Section 255 (1) makes it abundantly clear that it has only a limited power to amend the new Constitution. Major amendments to the Constitution must be passed by Parliament and ratified by the people through a referendum subsequently.
As I demonstrate below, a lay man and a lay woman apart, the new Constitution does not give parliament power to approve or reject the election of a member of the Judicial Service Commission by the specified organ. If the Committee had before it these nominees of the president, one would not question it\’s action.
If Parliament wishes to have such power it should secure passage of a Bill giving it such a power which will subsequently be ratified by the people through a referendum. The Justice and Legal Affairs committee should stop meddling with the processes of implementing the constitution generally, constituting the Judicial Service Commission and also stop putting professional careers of lawyers on the line through an abuse of its power.
Logically one expects this committee first to recommend a rejection of some of the elected members of the Judicial Service Commission and to require that Commission when it starts its work, to submit for vetting on a regular basis, the persons it will recommend to the President for appointment as judges of the Supreme Court, the Court of Appeal and the High Court under sections 163 to 166 and 172 and of the new constitution. These will be illegal actions.
Although it might not have been realised by many, last week the parliamentary committee on Justice and Legal Affairs plunged the country into probably the first constitutional dilemma in the course of implementing the new constitution, through a zeal which is not informed by a reading of the new constitution.
Justice Riaga Omolo of the Court of Appeal, Justice Isaac Lenaola of the High Court Ahmednasir Abdullahi, Emily Ominde and Florence Mwangangi the duly elected representatives of the Court of Appeal, the Judges and Magistrates Association and the Law Society of Kenya in the Judicial Service Commission were wrong in honouring the illegal summons of the parliamentary committee on Justice and Legal Affairs to appear before it for vetting on October, 26, 27 and 28 respectively.
That committee has no power to summon them. Mr Abdullahi, the former chairman of the Law Society of Kenya was right in pointing out to it the fact that his election to the office of a member of the Judicial Service Commission does not, under the new constitution require the approval of any authority including that Committee. However, strangely he agreed to be vetted.
Its chairman Hon. Ababu Namwaba has told the country that his Committee ¨will table the list of nominees to the Parliament with specific recommendations on each candidate¨ to reject the nominee or not.
By agreeing to be vetted all of them have given the Kenyans the mistaken impressions that the Judicial Service Commission in which they have been elected to serve will answer to Parliament, and not to Kenyans as the new Constitution demands, they will contravene the constitution whenever parliament so demands and that they will recommend persons to be appointed judges of the Supreme Court, Court of Appeal and High Court on the basis of the politics of the parliament.
They, of course, may not do any of these things but Kenyans do not believe so after seeing them submitting to an illegal process so that they do what the constitution entitles them to do without the any approval of that Committee or any other to her authority. They have surrendered their constitutional independence to the parliament!
The Justice and Legal Affairs Committee and by extension, the parliament, is exercising the pretended power to reject both the selected members of the Judicial Service Commission and those judges whom they will recommend for appointment by the President under the new constitution.
Under our new constitution the parliament plays a very small role in the appointment of judges. This as section 166 of the constitution shows is in connection of the Chief Justice and his Deputy. This section provides as follows:
166. (1) The President shall appoint –
(a) The Chief Justice and Deputy Chief Justice in accordance with the recommendation of the Judicial Service Commission and subject to the approval of the National Assembly; and
(b) all other judges in accordance with the recommendation of the Judicial Service Commission.
As explained above the reason is that Kenyans have opted a merit only system of selecting judges. Even the Chief Justice and Deputy Chief Justice will be appointed by the President on recommendations of the Judicial service Commission.
The House will have no option but to reject its ill advised recommendations and in addition, hopefully to reprimand its members. The move of the Committee is evidently strategic. If you kill the independence of the Judicial Service Commission, you will ensure that the judiciary will be as independent as the parliament chooses to allow it.
A false start in constituting the Judicial Service Commission has been made. After waiting for more than 20 years to have a new constitution, they will not find it difficult to wait for another 60 days to have a properly constituted Judicial Service Commission. If those who elected the 5 persons wish them to be re-elected, that will be their decision. However, the reassuring thing is that the message will have been driven home to the parliament that it has no role to play in the constitution of the Judicial Service Commission except the vetting of the two nominees of the President.
(Dr Kuria is a Senior Counsel).