In every democracy, it becomes necessary from time to time for the Judiciary to assert in a robust manner its independence when challenge by either of the other two arms of the government i.e. the Legislative 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.
The time has come 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.
There are three ways in which the JSC can handle these illegal summons, Firstly, it can ignore the summons altogether because they are null and void and of no legal effect.
Secondly, the Chief Justice Dr Wily Mutunga, in his capacity as the Chairman of the Judicial Service Commission can write to the Speaker of the National Assembly and the chairman of the Justice and Administration of Justice Committee, Hon. Samuel Chepkonga and explain to them why the JSC is not permitted by the Constitution to honour such summons.
Thirdly, 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 and 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.
In this instance, the Chief Justice will appear before the House and explain that under Article 168 of the Constitution, the JSC is the constitutional organ which Kenyan people have established “promote and facilitate the independence and accountability of the judiciary” and not the committee.
The committee erred in issuing the summons as it was exercising a pretended power to make the JSC accountable to the Kenyan people who have not given the committee that power. Only the JSC has the power to appoint and remove from office such administrative officers as the Chief Registrar of the Judiciary.
The committee also erred in threatening not to view favourably the judiciary’s next budget request when it is presented to the House and to threaten to ask the High Court to commit the JSC members to jail for refusing to honour the summonses. The committee does not have such powers.
The Chief registrar Mrs. Gladys Shollei made a mistake in honouring the summons and addressing the committee. She should have ignored it. She washed the judiciary’s dirty linen in public and damaged the public’s confidence in the system.
The issue now is not whether the JSC can and should act independently of the committee 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.”
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 before where the President was not obliged to act on the advice of the JSC when appointing a judge, under the current Constitution, the President appoints only those persons recommended to him by the JSC. Politics has been removed from the appointing process.
The JSC determines the remuneration and terms of service of all employees including judges and ensures that there is administrative independence.
In Kenya, the Chief Registrar of the Judiciary and other staff are employees of the Commission. They are appointed and disciplined by the Judicial Service Commission.
In Canada, the Chief Registrar of the Judiciary is appointed by the federal (read national) government which sets the salary, she works under the Chief Justice who in practice is her boss. The Chief Registrar therefore prepares a budget which is taken to the Federal Minister of Finance who is answerable to the tax payers. In practice the federal government has never used its authority to attempt to influence the adjudicative work of the court. The federal government’s disagreement with court’s judgment has never led to budgetary or other restrictions or refusal to fill vacancies. This is the correct position which the parliamentary committee should follow.
What is however frightening is Hon. Chepkonga’s wholly unwarranted, belligerent and uninformed approach in the case of Mrs Gladys Shollei.
Gibson Kamau Kuria, S.C.
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