For Kenya: celebration of its 10-year-old constitution, a growing crisis – and a forthright judge speaks

28 August 2020 · Carmel Rickard

As Kenya celebrated the 10 th anniversary of its constitution, with virtual seminars, webinars and other discussions, one of the most serious challenges yet brought under the constitution is making its way through the courts. That problem is the failure of the country’s President, Uhuru Kenyatta, to appoint more than 40 judges nominated by the Judicial Service Commission. And, equally significant, his failure to abide by a court order that the judges be appointed.

Read judgment, August 2020

Read judgment, February 2020

In February three Kenyan judges of the high court’s constitutional and human rights division delivered a damning judgment. The first sentence of the judgment explained it all, as well as the context: ‘This is the second time in the short history of our 2010 Constitution that this court is being called upon to resolve a stalemate between the President, a state officer, and the Judicial Service Commission, a state organ, over the appointment of judges to superior courts.’

After considering the law and the facts, the court found that the President ‘has no mandate to review, reconsider or decline to appoint persons recommended by [the Judicial Service Commission] as judges. We also find that the delay by the President in appointing the persons recommended, is unreasonable and unconstitutional.’

The court thus issued a declaration that the President was ‘constitutionally bound’ by the recommendation of the JSC, with a second declaration that his failure to appoint those recommended by the JSC ‘violates the Constitution and the Judicial Service Act’.

Earlier this week, the high court considered another round in the same dispute, with a further application related to the problem. The Katiba Institute, a body that promotes and defends constitutionalism in Kenya, asked that the judge hearing the matter should direct the dispute to be heard by a bench of judges appointed by the Chief Justice.

What would the dispute be about? In the view of the court the matter to be heard by a bench of judges raised ‘rather novel and substantial questions’, including what remedy was available when the President ‘disregards a court order’. For example, would the ‘doctrine of necessity be available’ to prevent further violation of the constitution by the President? Judge William Musyoka added that the petition arises from the alleged failure by the President to comply with the judgment of the high court delivered in February and that involved ‘what are clearly public interest issues’.

Judge Musyoka added, ‘I am of the considered view that the matter [involves] substantial issues of a constitutional nature, on separation of powers between the executive and the judiciary.’

But while the Katiba Institute – and the rest of the country – wait for the Chief Justice to appoint a bench to hear this highly contentious matter, and if possible to avoid a constitutional crisis, a series of virtual discussions are taking place to mark the 10^th anniversary of that very same constitution.

Most recently, at end of this week, the African Network of Constitutional Lawyers, co-hosted a symposium on the issue. One of the speakers was Justice Johann Kriegler, retired member of South Africa’s Constitutional Court. He chaired a six-person international commission of inquiry that investigated Kenya’s disputed 2007 presidential elections.

During the symposium he looked closely at the Kenyan electoral system and he had some strong words about the fact that yet more changes to the new constitution were being proposed.

He said much of what his commission recommended in 2008 was included in the present constitution, and much had not been accepted.

But, he said, Kenyans should understand that ‘constitutions do not make societies work. Rather, societies make their constitutions work.’

‘Constitutions and laws are only as good and as strong and as effective as the people want to make them. We concentrated in the report in 2008 on trying to say that the problem is in your hearts, not in your laws. The problem is in your practices, not in your proposed or your propounded principles. It’s what you actually do that makes your elections fail and makes your systems fail.’

Justice Kriegler said he was disappointed though not surprised to hear that Kenyans are once again ‘seriously talking about constitutional amendments.’

‘The problem is not with the constitution; whether it is parliamentary or presidential is really not the issue.

‘Let me look at the electoral system. The talk has now been this afternoon – and I believe it is quite common in Kenya – that the electoral system should change because the first-past-the-post system is a system that excludes minorities and does not allow for proper representation of various interest groups in society. And there are a lot of spoilt votes and a lot of minor influences and opinions that are never reflected in the public debate in the legislature.

‘In South Africa where we have a proportional representation system, the people, the voters, the commentators who are more or less informed, are agitating for a first-past-the-post electoral system.

‘The real problem in Kenya is unaccountability of representatives, people who go to parliament on promises and live on their salaries.

‘The problem in South Africa is people who go to parliament on promises and stay there on their salaries.

‘The system of election does not make for honest, accountable politicians. The system of government cannot make for polite policemen instead of thugs. The system of government cannot make for honest judges instead of agents of the governing party.

‘Civil society must keep its politicians honest.

‘No electoral commission can function adequately without the support of the body politic as a whole. Without the willing cooperation of the political class, an electoral management body will fail. The electoral commission in Kenya … cannot succeed unless and until the political players are prepared to say this is the referee, this is the person who is in control of the rules of the match, the contest for power.

‘That is not the electoral commission’s fault. It is the fault of the political class. It is the fault of the people of Kenya who allow the political class to maintain the hegemony that they have had ever since independence in the 60s.’

Carmel Rickard

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