The CIC is issuing this statement in pursuance of its mandate to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution. The CIC is required to report regularly to the Constitutional Implementation Oversight Committee (CIOC) on the progress in the implementation of the Constitution; and any impediments to its implementation. Further the CIC is mandated to work with each constitutional commission to ensure that the letter and spirit of the constitution is respected.
The Commission’s mandate is buttressed by Article 249 (1) a, b, and c which provide that the objects of the commissions and the independent offices are to:
a) protect the sovereignty of the people;
b) secure the observance by all State organs of democratic values and principles including those articulated in Article 10 and of the Constitution particularly respect for the rule of law, participation of the people, integrity, good governance , transparency and accountability .
c) Promote constitutionalism.
Provisions of Chapter 6 on Leadership and Integrity are pertinent. Flowing from our mandate we feel obligated to clarify the provisions of the Constitution relating to the process of appointment of the Constitutional offices in issue.
The appointments relate to Articles 166, 156, 157 and 228 of the Constitution read together with Sections 24 and 29 of the Sixth Schedule of the Constitution
Provisions relating to the Appointment of the Chief Justice
Article 166(1) (a) provides that
the President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly;
and Section 24 (2) of the Sixth Schedule provides that:
A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.
Section 29 (2) reinforces this provision by providing that all new appointments that require approval by the National Assembly shall be made by the President after consultation with the Prime Minister.
Pursuant to the mandate of the CIC of ensuring that both the letter and the spirit of the Constitution are followed in the implementation of the constitution, the CIC would like to submit as follows in view of the above provisions:
(a) That Article 166 (1) contemplates that the appointment of the Chief Justice of the Republic of Kenya shall be a shared responsibility among the three arms of government namely the Judiciary (through the Judicial Service Commission -JSC), the Executive (through the President) and the Legislature (through the National Assembly).
(b) That in carrying out the mandate of appointing the new Chief Justice, the President shall consult the Prime Minister.
In view of the above, it is the position of the CIC that the letter of the Constitution as provided for in Article 166 read together with Sections 24 and 29 of the Sixth schedule require that the appointment of the Chief Justice by the appointing authorities should be as follows:
I. That the process of appointment should commence with recommendations by the Judicial Service Commission to the President who in turn should consult the Prime Minister after which the President forwards the name of the nominee to the National Assembly for approval before final appointment by the President.
II. That the role of the Judicial Service Commission in the appointment of the Chief Justice should be respected and the Commission allowed to undertake the function reserved to it by the constitution.
Provisions relating to the appointment of the Attorney General, the Director of Public Prosecutions and the Controller of Budget.
The offices of the Attorney General, the Director of Public Prosecutions and the Controller of Budget and the process of their appointment is set out in Articles 156, 157 and 228 of the constitution respectively. In the case of these offices the appointment of the office holders is shared by the Executive and the Legislature.
Under the aforesaid Articles the three Constitutional office holders are to be nominated and eventually appointed by the President subject to the approval of the National Assembly.
In the period before the first election this section must be read together with the provisions of section 29 of the Sixth Schedule of the Constitution, which provides as follows:
(1) The process of appointment of persons to fill new offices and vacancies arising in consequence of the coming into force of this Constitution shall begin on the effective date and be finalised within one year.
(2) Unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.
Consequently, such appointments being made prior to the first elections, require the President to consult the Prime Minister prior to appointment, subject to the National Accord and Reconciliation Act. The process of appointment should also reflect the letter and spirit of the constitution. Only if the above processes were followed would the nominations be constitutional.
In conclusion, while it is not the duty of the Commission to pass judgment on the issues in contention, we must nonetheless humbly express our considered view that the nature of the ongoing public debate on the legitimacy of the nominations can only do harm to the delicate process of implementing the constitution. Moreover, since the constitution belongs to the people of Kenya, it is important that CIC shares this position with the people of Kenya in order to inform the legitimate expectations of all Kenyans on this matter of great national interest.
Good stewardship is critical to the success of the implementation of the constitution. Discordant messages from the leadership, whether Executive or Parliament, may polarize Kenyans and prejudice the fruitful implementation of the Constitution. The CIC therefore humbly request the two principals to provide forward looking and selfless leadership critical for the unity which is critical for the implementation of the constitution which Kenyans overwhelmingly voted for.
We believe that only working together would generate an acceptable outcome, while on the other hand any stand-off has only the effect of undermining the effective implementation of the Constitution. The CIC calls upon all Kenyans engaged in these discussions to invest their wisdom in finding solutions rather than fault apportioning. This is important as the office of the Chief Justice should be filled by February 2011 and the other offices by 28th of August 2011, at the latest.
THE COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION (CIC) DELTA HOUSE, P.O BOX 48041-00100, WAIYAKI WAY, NAIROBI
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Appears on the Daily Nation for Tuesday 1st February 2011 (Page 23)
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