Marende ruling sets proper precedent

By Dr. Gibson Kamau Kuria, SC

Through his ruling on the constitutionality of the process of the nominations of four persons who were to be considered for appointment as Chief Justice, Attorney-General, Director of Public Prosecutions and Director of Budget, Speaker Kenneth Marende has set the country on the right path in ensuring that after 27th August, 2010, the appointment of holders of constitutional offices is a shared responsibility of the Executive and Legislative branches of the Government. 

The ruling, therefore, reflects the new Republic Kenya is.  He is to be commended for that. Previously, it was the responsibility of the Executive alone.

The full implications of that ruling can only be grasped if three factors are borne in mind.

The first factor is that under the new Constitution, the appointment of holders of constitutional offices is a shared task of both the Executive Arm of the Government and the Legislative Arm.  The Judiciary has no role whatsoever.

Under section 166 of the Constitution, the Judicial Service Commission applying the merit criterion alone, recommends to the President the persons to be appointed Chief Justice and Deputy Chief Justice which he appoints subject to approval of the National Assembly. 

Section 12 of the transition provisions describes the composition of the Executive Arm of the Government during the transition period.  It is made up of the President and the Prime Minister.

In a global study of the appointing process, Honourable Sandra E. Oxner has observed that merit is made up of high moral character, intellectual and analytical ability, sound judgment, integrity and understanding of people and society.  (See Hon. Sandra E. Oxner, The Quality of Judges, in 2003, the World Bank Legal Review, Vol. 1, 321).

Under section 166 of the Constitution, the National Assembly is not limited in the number of nominees it may reject.  In the USA, the Congress has approved 123 out of 159 court nominations made by presidents during the history of that Constitution. There is, therefore, no novelty in the rejection by the National Assembly of four nominees.  The National Assembly should not get tired of doing the right thing by rejecting those whom it ought to reject.

It is the expectation of the Kenyans that the Constitution and the criterion of merit alone will be followed by the President and the Prime Minister in nominating prospective holders of constitutional officers, so that the Parliament gives the approval necessary.

Under section 61 of the former Constitution, the President alone appointed the Chief Justice without reference to any other organ and judges on advice of the Judicial Service Commission.  The radical change which is yet to be embraced, or understood, by all is that the power to appoint holders of constitutional offices is now a shared responsibility of the Executive and Legislature.  Through his/her Member of Parliament, the Kenyan participates in the appointment of holders of constitutional offices.

The second factor which Honourable Marende has got right is the principle that the Constitution allocates different powers to different branches of Government.  The judicial power vested in the Judiciary, through section 160 of the Constitution.  The legislative power is vested in the Parliament, through section 94 of the Constitution. 

Section 130 of the Constitution vests the executive power of the Government in the President, Deputy President and the Cabinet.  It is the Parliament alone which discharges the functions allocated to it.  To do so, it must, of necessity, interpret the Constitution.  That is what Honourable Marende did on Thursday. 

The court's role in the appointment could only arise if somebody were to go to court and complain that either a person who is not eligible for appointment has been appointed through the shared process or that a nominee was wrongly rejected by Parliament.  In that event, the decision of the National Assembly would be reviewed.

The third factor is that where an arm of Government, like the Executive or the Legislature, is given a task by the Constitution, it discharges it, and subsequently, there is a challenge to its decision, the Judiciary has the power to inquire into the allegation.  The court will not inquire into the wisdom or otherwise, of that decision because it is not its power to do so.  It will merely find out whether the process was followed.  There is an apparent confusion as to the respective competences of the Parliament and the Judiciary.

In two Ugandan cases, Olum -v- Attorney-General and Ssemogerere -v- Attorney-General (No. 3), the Supreme Court of Uganda has invalidated an Act of Parliament which was passed without the requisite quorum and in disregard of other applicable constitutional principles.  In Ssemogerere -v Attorney-General, the Supreme Court invalidated a purported constitutional amendment passed without following the right procedure.

Of necessity of the Executive and the Legislature to perform their respective functions, they must interpret the Constitution in the first place.  The suggestion by the Chairman of the Commission on Implementation of the Constitution that the Parliament has no power to give the Constitution its own interpretation, is wrong. 

It is for that reason that Hon. Marende held that the Parliament had constitutional power to discharge its functions notwithstanding the fact that there was a court case and a ruling obtained by citizens who are represented in Parliament and were acting prematurely.
 
Dr Kuria is an advocate and Senior Counsel