Former Chief Justice Willy Mutunga's open letter, published this week, was a detailed four-page critique of President Uhuru Kenyatta’s appointments. Those sworn in included just 34 of the 40 names given to Kenyatta by the judicial service commission for appointment and the decision to exclude six jurists has caused an uproar.
Many legal commentators maintain that the President, presented with names by the JSC, has a mere rubber stamp function. This was borne out by a high court judgment that held the President was obliged to appoint all 41 (one candidate has since died) nominated by the JSC. President Kenyatta, however, maintains that his own oath of office obliges him to act in the interests of the country and that since he has security information – he has not clarified beyond that – in relation to the six excluded candidates, he is duty bound not to appoint them.
That view has now been challenged by no less a person than Justice Mutunga, who retired from office in 2016. He said in an open letter that he had decided to speak ‘elaborately and strongly’ on the question because once ‘blithe breaches’ of the constitution started, especially when carried out by ‘the highest office in the land’, they signalled ‘a dangerous dalliance with impunity’.
Brazen
He characterised the move by Kenyatta as ‘intentional, persistent, defiant and brazen’ and an ‘inexplicable determination to overrun the barricades of Kenya’s constitutional order.’
Nothing in the oath of office allowed a President only to uphold those aspects of the constitution that he found ‘convenient’. The Judicial Service Act made clear that the President, ‘by dint of plain, clear constitutional provisions, and numerous court orders, is obliged to appoint all the recommended judges without hesitation, review or negotiation.’
The current stand-off lowered the esteem of the office, undermined the rule of law and eroded public confidence, said the former CJ. It had been agreed in 2015, when a related issue first arose, that if the President had any adverse reports on any shortlisted judicial candidate, he would share the report with the JSC at that stage of the recruitment process, not later. The reports would then, in the interests of fairness, be put to the implicated candidate for a response.
Reckless
Justice Mutunga characterised this as a ‘fair and commonsense approach’ and one that had previously worked. However, in this case, no negative reports on any candidate were received by the JSC at the appropriate stage of the process, and the JSC therefore went ahead to make recommendations.
‘The President’s conduct in this matter has been beneath the dignity of that high office.’ For two years he had called into question the integrity of serving judges and judicial officers without any due process. He also subjected several advocates among the nominees to ‘untold personal suffering’ for two years [because of his claims to have negative reports against them]. However, he had now finally gazetted all the advocates recommended two years ago, exercising power in a way that Justice Mutunga called ‘egregious, reckless and insensitive’.
‘Most disturbing is the President’s decision to omit the names of six judges and judicial officers from the list [of those appointed]. Strikingly, the presidential “list of hate” had even mysteriously changed, meaning that the objection to the judges’ nomination is driven more by personal pique rather than principle.’
‘Ugly display’
Justice Mutunga said the constitution had been specially drawn up in a way that would prevent the ‘whimsical and capricious presidential conduct’ on ‘ugly display’ in this dispute.
‘State offices are not the personal property of any individual of office …. The constitution is clear on the mechanisms for raising any issue the President or any other person may have against a sitting judge …. That the President has taken two years without presenting any evidence to the commission in spite of active and repeated solicitation points to bad faith, and most likely, absence of any actionable information on the judges.’
‘It is urgent that the President immediately appoints the six judges, many of whom are exceptional, because that’s what fairness, common decency, the rule of law and the Constitution require. The independence and accountability of the judiciary is not negotiable.’
Impeached
Another former Chief Justice, David Maraga, who retired earlier this year, has also joined in the dispute, and, a day after the letter by Justice Mutunga, is reported by Kenyan media to have said that the President ‘should have been impeached for violating the constitution’.
Justice Maraga said that parliament ‘should have taken steps to remove the President from office for violating the constitution by failing to appoint the 41 judges nominated two years ago.’
He added that before he left office, he had been given a list of the JSC-nominees that the President did not want to appoint on the grounds that they were ‘tainted’. However, when Justice Maraga saw the names of the six judges who were omitted from the swearing-in ceremony last week, he was surprised to find that the names differed from those he had been given.
‘Delaying tactics’
‘The names have changed …. Some names have been added and others removed. Those who were said to have issues have been appointed and others removed from the list.’
And in another development this week, the high court gave President Kenyatta 10 days to respond to a petition challenging the selective appointment of judges. The three-judge bench heard submissions that the President’s legal team had been using ‘delaying tactics’ since the petition was first filed in June 2020. No response had been forthcoming from the President, despite the courts ordering him three times to do so.
