The International Commission of Jurists–Kenya organised an excellent webinar this week on the independence of the Judiciary this week (and you can watch it on You Tube at https://www.youtube.com/watch?v=-jqrCBQVoYE).
Its timing was, as you may imagine, suggested by the recent standoff between the Executive and the Chief Justice (who is not, despite fake news, about to go on leave pending retirement).
But, without going into that in any depth – and into issues that may be litigated again soon – it seemed appropriate to explore in a bit of depth here the issue of how judges are appointed, bearing in the need for them to be well-qualified, of integrity, enjoy respect of the profession and the public, and be independent.
The last word is absolutely crucial. A judge who is a brilliant lawyer, judge of the honesty of witnesses, would never take a bribe, and is hard working, but who will accept phone calls from State House or some lesser location, will bend the law to the wishes of government, or political party, clan elder or anyone else other than on the basis of the arguments of the parties, the evidence and the law, betrays the Constitution and the people of Kenya.
A few weeks ago this column, I tried to explain why it is so hard to discipline members of the Judiciary without running foul of the necessity for independence. And it also explained that the method of appointment of judges was generally reckoned to be important for securing judicial independence.
In many countries, this aspect of judicial independence has been a late arrival on the scene. Though it became hard for judges to be dismissed, they were appointed by monarchs, and later on the binding recommendation on elected governments.
I learned as a student that blatantly party political appointments of judges faded away early last century in the UK. But it remained hard for people not from the normal more conservative background to become judges. DN Pritt, who defended Jomo Kenyatta, would never, as an avowed communist, have become a judge.
JUDICIAL SERVICE COMMISSIONS
Judicial service commissions have become very common. But they are not all the same. Looking at who are their members, we would ask: Do they have government officers? Do they have politicians? Do they have serving judges? Do they have practicing lawyers? Do they have people with legal qualifications who are not practising lawyers? And do they have people who are not lawyers at all? And which type of members dominates? And who chairs it?
Worldwide, we can see judge-dominated commissions, profession-dominated ones, and politiciaN- dominated ones. Many are a mixture.
The South African Commission has 23 members (up to 25 when certain types of judges are being recruited). Its members are the Minister of Justice, six members of the National Assembly (half of whom must be from the opposition) and four of the upper house, three judges, four practising lawyers, one university law teacher, and four people designated by the President after consulting the leaders of all the parties in the National Assembly (these are usually lawyers). The Judges are all heads of courts, and the Chief Justice chairs the Commission.
The Kenyan commission is very different. The Chief Justice does chair. And there are existing judges – not heads of courts as in South Africa but elected by other judges. There is one from each of the Supreme Court, the Court of Appeal, the High Court and the magistrates. Interestingly, none from specialised courts like the Land and Environmental Court. The Attorney-General is there, and one persons nominated by the Public Service Commission. The team is completed by two advocates and two non-lawyers, nominated by the President to be the voice of the people.
The government’s (or President’s) voice in the commission should not be strong: the Attorney-General (who is supposed to be not just the government’s lawyer but an upholder of the rule of law and defender of the public interest), those two members of the public who will feel under some obligation to the President, and perhaps the Public Service Commission nominee. The voice of the Judiciary should be the strongest.
IS THERE AN IDEAL MODEL?
No. There are pros and cons of all the possible elements in a JSC. Some doubt the wisdom of it being chaired by the Chief Justice (but in 72 per cent of Commonwealth JSCs this is the position). For us, that was not what the drafters of the Constitution wanted, but those MPS who mutilated the draft in Naivasha in 2010 introduced this.
Many would approve the idea of the body being very largely controlled by Judges, thus making the judiciary more of a self-regulating body, and more independent. There is a risk that it will be a self-perpetuating body, reproducing a judiciary not attuned to the needs of a changing society – or a constitution intended to transform that society.
Lawyers think (or some of them do) that there should be no judges, or fewer judges and more advocates. Advocates see judges in action, the argument goes, and can best judge their qualities. Yet there is a very real problem: If judges are to work independently, will that be achieved if they feel under a sense of obligation to lawyers who appear before them but who were key to their appointment as judges?
The case for having politicians is that they are supposed to represent the people, and that they may have a better sense than lawyers and judges of what society needs. But will they really understand the issues, and have the commitment to make the effort to understand them? The South African experience is not all positive. Would we trust our MPs?
University law teachers study the law, and that is what the judges do, and should be forward-looking on the law. But the Committee of Experts rejected the introduction of one such member by the MPs in 2010.
Having members of the public may be a good idea. However, a study of best practices says, “It may also be valuable for a commission to include ‘lay’ members who offer a civil society perspective on the court system, or contribute expertise in other relevant disciplines such as human resources. The legal framework should ensure that the selection of lay members does not fall under political control.” We violated that approach. When introduced into the draft constitution, these people would have been appointed by a largely ceremonial president, not the head of government. They remained when the MPs changed our system to a presidential one – so making them the choice of the head of government.
ROLE OF THE PRESIDENT
This is a short topic. At present (an appeal is possible) court decisions have held that the President has no role other than a purely formal one.
Some people (including the President) find this surprising. But we should remember that the President is not only the head of government; he is the head of state. He is a symbol of the nation. His involvement in some public act – like making a formal appointment, or receiving a foreign ambassador – confers a sort of ceremony, underlines the importance.
Many would think it is a virtue that the appointment of judge is not a matter for choice by the Executive. We are spared the situation in the United States, where a President can change the nature of the Supreme Court, and the course of the law, if he is fortunate enough to have a few judges die during his term of office.
There are other factors that are important in selecting judges. Do we have clear enough criteria about what makes a good judge in the Kenya of today? Is the process – more open than in many countries – transparent enough? Are our judges drawn from a wide enough cross-section of society? Our lawyers are not – so how can the judges be?
But overall, our system has not served Kenya badly. The JSC, though not perfect, has made some excellent appointments.
This article was first published on 24 June 2020 by the Star Newspaper