In what is the first real test of Kenya’s new Constitution, the President has backed down by withdrawing nominees appointed inconsistently with the Constitution to fill four significant public positions: Chief Justice, Attorney General, Deputy Public Prosecutor and Controller of the Budget. See story here and here.
The Constitutional Implementation Commission, the Judicial Service Commission, the Speaker of the National Assembly and the High Court had already declared the nominations inconsistent with the requirements of the new Constitution. (See below for excerpts of the High Court ruling outlining the provisions of the Constitution at issue).
A suit filed by a women’s rights group challenging the constitutionality of the nominations for failing to give equal protection to women in the nominations as required by Article 37(3) of the Constitution is still pending. See story on that case here and here.
Another suit filed in the Court of Appeal by the Constitutional Implementation Commission to give a definitive interpretation of the nominating and appointing process and requirements for Constitutional Office holders is also pending is unlikely to be withdrawn since the President insists he appointed the four officers within his powers. See story here.
President Kibaki, who had initially declared that he will fight to the end to keep the nominees, withdrew the nominations arguing that it will enable Kenya to “move forward with the implementation process of the Constitution.”
This withdrawal of the nominations is the first indication that the President may very well be re-considering his strategy of outflanking the Prime Minister with respect to the new Constitution’s mandate to consult with the Prime Minister and to work with other organs in the implementation of the new Constitution. Second, the withdrawal of the nominations presents a new opening for Kenya to begin to show credibility in reforming the judiciary and possibly setting up a credible local tribunal to try post election offenders.
In a ruling on whether the list of nominees was admissible in the National Assembly, the Speaker ruled the list of nominees was inadmissible because it was unconstitutional. Noted the speaker:
[H]aving paid due regard to the positions advanced by the High Court and other constitutional and statutory bodies, I find and rule that the constitutional requirements of section 24 (2) and 29 (2) of the Sixth Schedule to the Constitution requiring consultation subject to the National Accord and Reconciliation Act are not met if the National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between His Excellency, the President and the Prime Minister. Such is not the nomination contemplated by the National Accord and Reconciliation Act, which is part of the Constitution. It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its Committees nor by a vote on a Motion in the House. Further, and I so find, no Motion on such a nomination, whatever its terms and whatever the contents of the Report upon which the Motion is based, is admissible and I therefore hereby so order.
Enormous pressure had been piled on the President by civil society groups, the Prime Minister and Kenya’s foreign envoys among others. See story here.
In his statement withdrawing the nominations, the President argued that the Judicial Service Commission would now proceed with the nominations as required by the Constitution. This was the proper interpretation of the nominating and appointing process for constitutional office holders such as the Chief Justice, Attorney General and the Deputy Public Prosecutor that the High Court, the Judicial Service Commission, the Speaker of the National Assembly and the Commission on Implementation of the Constitution had already spelled out in opposing Kibaki’s unilateral appointments.
This withdrawal of Kibaki’s unilateral appointments is a victory for the checks and balances established in the new Constitution that subjects the President’s appointing authority of judicial officials not only to consultation with the Prime Minister, but also the Judicial Service Commission which has representation outside the government. Further, such nominations have to be approved by Parliament. Thus by withdrawing those nominees, the President effectively conceded the new Constitution’s consultative process had not been followed. It is notable that the current Attorney General Amos Wako who has otherwise been regarded as a lackey of the President (and is remembered for his maiden speech in Parliament declaring ‘no man save the President is above the law’) has repeatedly sided with those critical of the President’s nominations both in High Court proceedings as well as a member of the Judicial Service Commission. Perhaps with Wako’s days numbered as Attorney General, he is beginning to get some muscle!
To get a fuller picture of the constitutional issues at stake in this controversy, here are some excerpts from the High Court ruling ordering the President to hold off the appointments until their constitutionality was established. The case is Centre For Rights Education And Awareness (Creaw) & 7 others v Attorney General [2011] eKLR (decision of 3rd February, 2011):
What are the major violations of the Constitution complained of by the petitioners?
(i) That the nomination of the Chief Justice was unconstitutional… Miss Mbiyu on behalf of the Attorney General conceded that the President ought to have received recommendations from the Judicial Service Commission before he made the aforesaid nomination. It is in the public domain that the Attorney General, who is a member of the Judicial Service Commission, signed a joint statement of the Commission to that effect. That was done just about four days ago…On the basis of the concession made by the Attorney General, who is the respondent in this petition, it must be accepted that the said nomination did not comply with the constitutional requirements of Article 166(1) (a) as read together with Section 24(2) of Schedule Six of the Constitution. To that extent, the petitioners have proved that the nomination was unconstitutional. The rule of harmony in interpreting the Constitution as earlier stated has to be borne in mind.
The second issue relating to the constitutionality of the nomination to the office of the Chief Justice is whether it was done after consultation between the President and the Prime Minister in accordance with the National Accord and Reconciliation Act… there was no consensus or agreement between the two principals, which I must state, is not a requirement under the provisions of Section 24(2) of Schedule Six of the Constitution. That notwithstanding, the values and principles stated under Article 10 and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations.
(ii) Violation of Article 27(3) regarding equal treatment of men and women.
To the extent that all the nominees to the offices of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were all men, the spirit of equality and freedom from discrimination was not given due consideration…. While it may be argued that in future appointments to public offices women were likely to be included as submitted by Mr. Kihara, no reasonable explanation was given by the respondent why none of the four appointees was a woman.
In view of the violations to the letter and spirit of the Constitution as shown hereinabove, even without considering other relevant provisions of the Constitution, like Article 10, which spells out national values and principles of governance, I am satisfied that the petitioners have demonstrated that they have a prima facie case with a likelihood of success.
Posted by James Gathii 
AfJIL 