The decision of a Kenyan judge has won high praise from trainers at a recent judicial core skills workshop by the Judicial Institute for Africa (JIFA), held in Cape Town and attended by judges from 12 African countries. The decision, by high court judge Enoch Mwita, dealt with a situation in which the President of the country, Uhuru Kenyatta, was held to have ignored the constitution by failing to appoint a member of the Judicial Service Commission. Justice Mohamed Warsame was elected by the judges of the Court of Appeal as their representative on the JSC, but Kenyatta did not officially appoint Justice Warsame even though he was obliged to do so by the constitution. What should be the court’s response, faced with the President’s continuing failure to act in terms of the constitution and appoint the commissioner? Judge Mwita’s decision, to ‘deem’ that Justice Warsame was appointed to the JSC, was highly praised by trainer Justice Mathilda Twomey, former Chief Justice of Seychelles and JIFA’s academic director. She said the deeming decision was recognition that new judicial tools need to be designed to fit circumstances in which the executive refuses to obey and enforce court orders.
One of the features of the core skills judicial training offered participants by the Judicial Institute for Africa (JIFA) is a one-to-one session in which a judge is offered feedback by a course faculty member on a decision he or she has already delivered.
The idea is to look at judgment structure and other issues covered during the workshops and, against that background, to offer constructive suggestions.
This time round, one of the decisions submitted to JIFA’s academic director, Justice Mathilda Twomey, won particular accolades.
The decision, by Judge Enoch Mwita of Kenya and delivered in 2019, dealt with the failure by Kenya’s President Uhuru Kenyatta to appoint a member of the Judicial Service Commission, Justice Mohamed Warsame, after he was elected by the Court of Appeal as their representative on the JSC.
Judge Mwita found that Kenyatta acted unconstitutionally by not doing so, since the President was required to appoint a member of the JSC within three days of receiving a name from the commission, but many months later, had still failed to ratify Justice Warsame as a commissioner.
After their session on the judgment, Twomey said she thought the order crafted by Judge Mwita in response to the difficult situation created by the presidential inaction on the matter was ‘a stroke of genius’ that would force her to re-think situations where it had appeared there was nothing a court could do, faced with executive inaction in defiance of the constitution.
She added that the decision would be very useful for judges in other jurisdictions to read as well and it was an example of good ‘lateral thinking’.
Justice Twomey said, ‘Judges from the African continent need to draw inspiration and support from each other. Our shared colonial history unites us in many ways. Some of our African judicial officers continue to cite judgments from the colonisers’ jurisprudence and while this is a useful reference point, it is to Africa that we must turn for innovative adaptations of case law to suit local circumstances especially when the rule of law is threatened.’
In his decision Judge Mwita said the President’s ‘inaction’ violated the sovereign will of the people of Kenya and that he was not living up to his oath of office. The president had undertaking ‘to diligently serve the people and do justice to all in accordance with the constitution and the laws’ and Judge Mwita found that he was violating the constitution and its essential values including the rule of law.
What orders should the court grant in response?
First, Judge Mwita found in response to one of the sub-issues of the case, that there was no need for a commissioner to take the oath at the start of a second term of office on the JSC.
The judge held that the court was entitled to resolve the situation for a number of reasons, one being that since Justice Warsame had been elected he had acquired a right to represent the judges of the Court of Appeal in the JSC.
The remedy would have to be effective, Judge Mwita wrote, and would have to be a remedy that enforced the constitution, human rights and the rule of law.
‘In my view, the most effective remedy should not be to direct [the Attorney General] to do that which he has failed to advise the President to do.
‘Rather, the court should grant a remedy that will bring the constitutional process to a conclusion, do away with any further or potential stalemate and enable an independent constitutional commission to function at its optimal in the discharge of its constitutional mandate.’
The most appropriate relief, said the court, was an order that would enable Justice Warsame to take his position on the JSC to represent the judges of the Court of Appeal.
‘This view is informed by the fact that it is not the President’s act of appointment that makes [Justice Warsame] a commissioner, but his election. That, in my view, is the best way to strike at the heart of the problem and discharge the court’s obligation to respect, uphold and defend our transformative constitution and its essential values including the rule of law.’
The key section of the court’s order was therefore that since Justice Warsame had been duly elected to the JSC, and since the President had failed to appoint him, in violation of mandatory timelines under the Judicial Service Act, the court ‘deemed [Justice Warsame] to have been appointed, and [he] is at liberty to take his position’ as a member of the JSC, representing the judges of the Court of Appeal.
* Following this decision, Justice Warsame immediately took up his seat on the JSC and continues in this office. However, the President has still not officially authorised the appointment and Judge Mwita's decision has not been appealed.
* The line of reasoning adopted by Judge Mwita was subsequently used by three high court judges in relation to the controversy over the President’s refusal to appoint six judges, despite their nomination by the JSC. The President was given 14 days from the judgment to make the appointments. Failing that, he would have no further part in the process, and the six judges would be ‘deemed’ duly appointed. That decision is now making its way through Kenya’s appeal process.