Statement by Kenya Ni Yetu, Katiba Yetu, Maisha Yetu campaign on the President’s nominations of persons for the posts of Chief Justice, Attorney-General, Director of Public Prosecutions and Controller of Budget
Summary of statement:
• Emphasizes the importance of these positions in the scheme of the new Constitution
• Sets out the procedure that ought to be followed in making these appointments, with emphasis on the constitutional necessity of consultation with the Prime Minister (explicitly required in the case of the Chief Justice, and by implication in the case of the other offices, because the Constitution continues the National Accord and Reconciliation Act)
• Insists that consultation must be meaningful – not casual or ritualistic
• Points out the public input is a value enshrined in the new Constitution
• Observes that the failure to appoint any woman to any of these posts is also a violation of the gender equity emphasis of the Constitution
• Observes that it is contrary to the spirit and logic of the Constitution to appoint to judicial office – especially the highest judicial office – a sitting judge who is yet to undergo the vetting process
• Comments it was regrettable that earlier reports suggested that the Principals had agreed to “carve up” the appointment between them
• Regrets – indeed abhors – the reported failure of the President to adhere to the constitutional process, drawing attention to the fact that it is only 5 months since, with apparent pride, he promulgated the Constitution and promised a new dawn
• Suggests that the behaviour of the President unfortunately is consistent with some of his past acts in public office and that on this occasion would provide grounds for his removal from office
• Strongly urges the nominees to act on their consciences and to decline to be appointed by an unconstitutional process, the Commission for the Implementation of the Constitution to take note of the unconstitutionality, and the National Assembly to take seriously its role, if and when it is asked “to approve” these appointments, to protect the Constitution (as they swore in their oaths to do) as well as to represent the people of Kenya.
The press has reported that the President has appointed the following state officers: a new Chief Justice, a new Attorney General, the first Director of Public Prosecutions and the first Controller of Budget. The Office of the Prime Minister has stated that that there has been no consultation with him over these appointments. If this is indeed true, there have been serious violations of the Constitution on the part of the President. This statement outlines the procedure that ought to have been followed, and indicates why the course of action adopted by the President is so much to be regretted. Our concern is with the process that ought to have been used in identifying the candidates. We are assuming that it is the intention of the President to comply with the constitutional provisions about the next stage – each of these appointments must be approved by Parliament.
Prior to the parliamentary approval stage, the Constitution says the following about these offices:
• the process of appointment of any Chief Justice before the next general election is that the President would propose a name “subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister” (this is in Schedule 6, the transitional provisions, section 24(2))
• the Attorney General, the Director of Public Prosecutions and the Controller of Budget are to be nominated by the President (Articles 156, 157 and 228 of the Constitution).
However, the transitional provisions (Schedule 6 para. 3(2)) say that the old constitution’s provisions about the executive, and the National Accord and Reconciliation Act, are to continue to apply. That Act was designed to put into law the grand coalition agreement, and that agreement is part of the Act (it appears as a schedule to the Act). The agreement includes the following important commitment: “… to work together in good faith as true partners, through constant consultation and willingness to compromise.”
This suggests that even if the constitutional provisions about appointing the Attorney General, the Director of Public Prosecutions and the Controller of Budget say nothing about consultation, there ought to be such consultation. The National Accord and Reconciliation Act was given constitutional status under the old constitution, and it retains that status under the new one.
Consultation is not a matter of a casual conversation. It requires both parties to act in good faith – explicitly required by the National Accord and Reconciliation Act anyway. It requires ample opportunity for the person consulted to put their view forward, and that the person consulting should take that view seriously, though he or she is not bound to accept it. If consultation is required, the power can only be exercised after consultation (Article 259(11)).
We, the signatories to this statement, regretted what we understood from the press to have been an earlier decision of the Principals to “share” the offices of Chief Justice, Attorney General and DPP between them. We took the view, shared by most Kenyans, that these offices, designed by the Constitution to be independent of executive control, should not be appointed through party bargain. We would have preferred the Principals to ask the newly appointed Judicial Services Commission to put forward suggestions, at least for the office of Chief Justice.
We regret just as strongly to what appears to be the unilateral decision of the President to put forward names for these important offices of state on the basis of his sole judgment without the involvement of the Prime Minister. It is less than 6 months since the President, with great fanfare and rhetoric, promulgated that constitutional document which he is now apparently disregarding.
We also regret the apparent lack of any public consultation – despite the emphasis in the Constitution on “participation of the people”.
The importance of these particular appointments must not be underplayed. The Controller of Budget has a vital role in strengthening control over public expenditure, part of the fight against corruption. The key role of the judiciary in the implementation and enforcement of the constitution has been stressed by many Kenyans. Yet we are all aware of the problems in the past with corruption within, and incompetence of, the judiciary which so often failed to protect human rights, and promoted impunity.
Because of these considerations, a key aspect of the scheme of the Constitution was laying the foundations of an honest, competent and independent judiciary. This is to be done by vetting of existing judges and appointment of new judges through a competitive and transparent processes (although these are not specifically referred to in sec. 24, the observance of these processes is “in the spirit of the constitution”). By moving to appoint a sitting judge to the office of Chief Justice, before even the Act about vetting has been passed, he is proposing an absurdity: suppose that within a year after appointment, the new Chief Justice should fail to pass the constitutionally required vetting procedure, how would the country and the President look? We are not suggesting that the nominated person would fail the vetting – simply that the test of his continued suitability to serve on the bench is a matter for the vetting process and not for the President. Moreover the appointment of three men to the key posts in the administration of justice also violates the gender equity emphasis of the Constitution.
Had the President observed these procedures in their full letter and spirit, he would have demonstrated in a practical way his conversion to the principles and values of the constitution. Instead he has shown his contempt for fair and democratic practices. He has ignored the text and spirit of the National Accord which is part of the constitution until the next general elections by his lack of consultation with the PM on the appointment of other officers.
The president has shown himself to be both dishonest and opportunistic. We recall the way he introduced the bill to end democracy in Kenya and make it a one party state; that he was a senior member of the Moi regime when it removed the independence of judges, and other independent officers by constitutional amendments, arguing that leaving dismissal to the president was a greater guarantee of independence than a judicial enquiry. We recall also the way the President made a deal with Raila Odinga before the 2002 elections under which Odinga should have been appointed prime minister, upon which he reneged. We recall also his reneging on his widely published commitment to adopt and implement the CKRC/Bomas draft constitution within a 100 days of his election, and the way he appointed members of the electoral commission from among his cronies in disregard of the IPPG agreement for consultation with political party leaders. We recall also his being sworn in as president when the election results were still disputed, and there were considerable concerns that the results had been doctored to give him victory; and then agreeing to a power sharing agreement which he has repeatedly disregarded – and is disregarding again.
By some of these earlier acts he threw the country into great turmoil and now by totally unconstitutional acts, and at a time when he is desperately trying to save his cabinet colleagues, his chief public servant, and his former head of police, from a fair trial at the Hague, he is again likely to plunge the country in a deep crisis. He has shown either a great misjudgment or recklessness which provides ample reasons for his dismissal. The acts of the President surely amount to a “gross violation” of the Constitution – and would thus be grounds for impeachment. However, since the impeachment provisions are not yet in force, they would be ground for a vote of no confidence (which would lead to his removal). However – we are not so unrealistic as to imagine our members of Parliament will pass such a motion, which would lead to what they would consider the premature end of their terms of office.
If the president does not reconsider his decisions, we would appeal to the Commission on the Implementation of the Constitution, in the fulfillment of its mandate to ensure that the letter and the spirit of the constitution is respected, to draw the attention of the President to the matter and to report to the Constitutional Implementation Oversight Committee of Parliament. We appeal equally to the nominees to decline to accept appointment to these constitutional offices in a manner that violates the constitution. Finally we appeal to the National Assembly to take seriously their responsibility in the matter of “approval”. They are there to “obey, respect, uphold, preserve, protect and defend the Constitution” as they swore in their oaths in August last year, and to represent the people of Kenyan who elected them.
This statement was prepared by Yash Pal Ghai at the request of Kenya ni Yetu; Katiba Yetu; Maisha Yetu Campaign
About the Author
Kenyans must know that the New Constitution was made up by Yash Pal Ghai but was twisted to make some people to get money from the already done work. I was in Kenya by then when Ghai visited all corners of the Country to hear views from all the people and came up with all what Kenyan people wanted. Now because so and so from my tribe was not in Ghai’s committee commission they had to get chance to repeat the same thing to get more money for their friends.Leaders in Kenya should not think we are still fools who can not see wrong things.They should be warned.