Principals unfit to hire Chief Justice

By Jill Cottrell Ghai Failure to read the Constitution carefully is clearly revealed by recent comments and reports in the Press about the appointment of the next Chief Justice. This (and appointment of a CJ before the next elections) is governed not by Article 166, but by the transitional Schedule 6, Section 24. This says that the CJ is to be appointed (i) by the President (ii) subject to the National Accord and Reconciliation Act (iii) after consultation with the Prime Minister and (iv) with the approval of the National Assembly. It is not clear that the Act adds anything to point (iii) – except possibly, from the National Accord, “… We commit ourselves to work together in good faith as true partners, through constant consultation and willingness to compromise.” Section 24 is not a good procedure. It is not clear why the Committee of Experts included it, rather than moving straight to the final procedure, when the likelihood was that the Judicial Service Commission (JSC) would be in place to play a part in the selection of the CJ. But that is what the Constitution says. What it amounts to, in simple terms, is that the President must consult the Prime Minister first — but does not have to accept what he says; he does not have even to act “in consultation with” the Prime Minister. The President must act in good faith — underlined by the incorporation by reference of the National Accord — so the consultation must be genuine. Then the name of the appointee must be submitted to the National Assembly for approval before the formal appointment. The principals could decide to consult the JSC; indeed, so long as he consults the Prime Minister, the President alone could consult the JSC. The commission could even be asked to submit three names from which the principals (or the President after consultation with the PM) would pick one. But this procedure cannot be forced on the principals. Presumably it would be possible to set up a system by which applications are invited. Obviously the principals cannot be personally aware of the best candidate. If they do not choose to involve the JSC they will have to consult, if discreetly, especially if they stick to the constitutional procedure. It is appropriate that the legal profession, and others who have suggestions, should feel free to put them forward — through the media if there is no other way. People who then have good reason to object to whoever is nominated should convey their doubts to the National Assembly. But what is its role when it ‘approves’ (or rejects) a nominee? The whole idea of legislative approval of appointments can be traced back to the US — where the Senate approves appointments. But this was designed to bring the mature wisdom of the Senate to counteract the likely hotheads in the House of Representatives. Here we have given the function to the hotheads. It would be unobjectionable for them to consider any evidence as to integrity and other criteria of competence and appropriateness. They, no more than the principals, ought — if they wish to comply with the Constitution — to use party as their yardstick. What qualities should be expected of the Chief Justice? A decision was made to have a new court to provide leadership to the Judiciary. There has been an assumption, though never expressed in the various constitutional drafts, that these should be new judges — uncontaminated, as it were, by service in what was considered a largely discredited Judiciary. Certainly it would be odd to appoint any existing judge, who had yet to go through the ‘vetting process.’ As head of the Supreme Court – and the Judiciary – the CJ will be the face of the Kenyan legal system. The CJ must give leadership in terms not only of effective administration and honesty but also of development of the law. He or she should certainly have all the qualities listed in the Judicial Service Bill – which was withdrawn from Parliament. These include various dimensions of professional competence — including legal and administrative — integrity, fairness, the right temperament (including compassion and humility), judgment, experience and commitment to public service as well as being respected in the profession and the community. Chapter 6 of the Constitution, with its principles of ethics and integrity, is already in force. “The guiding principles of leadership and integrity include” it says, “selection on the basis of personal integrity, competence and suitability”. Nothing is said about deals between the principals. Any judge who leans towards one party or the other is by definition unsuitable. One final point on qualities: There is a constitutional age limit of 70. This cannot be circumvented by contract appointment. A contract appointee would still be Chief Justice and if over 70 when appointed would have to retire immediately! Anyway, contract appointments of senior judges are arguably incompatible with the protection of the independence of the Judiciary, and unconstitutional, if there is any possibility of renewal. In the longer run (for any appointment after the next elections), Article 166 provides that the JSC nominates, and the President must act on that nomination. The President will have no freedom of action. In this respect, and with respect as lawyers like to say when they politely disagree with each other, Miguna Miguna was in error when he suggested in a recent article that the President did not have to accept the recommendation of the JSC because it is only a ‘recommendation.’ There is no clearer way of saying that a recommendation must be acted upon. It is actually a prescription, not a recommendation, than to say, as Article 166 does, that the President must act “in accordance with the recommendation”. The decision, therefore, is to be effectively that of the JSC — with the approval of the National Assembly.