As long ago as the 18th century, Baron de Montesquieu, a French social and political philosopher argued that to guarantee liberty and good governance, political power must be shared between the legislature, the executive and the judiciary. The alternative was tyranny.
Article 1( 3 ) of our constitution recognizes this concept of separation of powers. It provides that the sovereign power of the people is delegated to Parliament and the county assemblies (that make law), the national and county executives (that carry out laws) and the judiciary and independent tribunals (that decide disputes – even ones involving the executive or legislature).
The separation of power principle has emboldened our judiciary in exercising their powers —which are critical for the success of a constitutional democracy. Article 160 guarantees the independence of the judiciary, saying that it “shall not be subject to the control or direction of any person or authority”. The independence of the judiciary means not only that no other body can tell the judiciary what to do, but that it has control over its finances. The judiciary must not only be independent, but must be obviously independent.
The principles of separation of powers and independence of the judiciary were tested in a critical case last year, brought by the Law Society against the Attorney General and Parliament.
Background of the case
In December 2015, the president signed into law the Statute Law (Miscellaneous Amendments) Act, 2015. This made changes to section 30( 3 ) of the Judicial Service Act: the Judicial Service Commission (JSC) was now required to forward to the president not just one name of a qualified person for position of Chief Justice or Deputy Chief Justice but three names for each post. This gave the president a choice as to which of the three to forward to the National Assembly for approval.
In defence of the constitution and in the public interest, the Law Society of Kenya and a number of civil society organizations, including the Katiba Institute, challenged the constitutionality of this new provision, because, they argued, it curtailed the independence of the judiciary.
Arguments by the Parties
The various organisations opposing the new law argued that the constitution required the JSC to select the Chief Justice and Deputy Chief Justice. Parliament approved (and could reject) the nominees, and the President, as head of state, made the appointments. But the President’s role, under the constitution, was a formal one only. To require the JSC to nominate three persons for each post was to allow greater participation of the President in the selection process. They also argued that the real purpose of the amendment was to limit the independence of the judiciary: it allowed the President to select his favourite among candidates nominated by the JSC —making the appointee feel under an obligation to the President. And this arrangement would risk creating a perception among the public that the judiciary is “an appendage of the executive”. In effect the new provision amended the constitution through the back door since it gave the President powers beyond what the constitution granted him.
The Attorney General and the National Assembly, supporting the new provision, argued that the constitution did not in fact require the JSC to forward only one nominee to the President. Additionally, they argued that the new provision was passed in good faith to save time and money in case a single nominee was rejected by either the president or the National Assembly: the JSC would have a substitute and would not have to start the process afresh. Furthermore, they argued that the doctrines of parliamentary privilege and separation of powers prevented the court from interfering with decisions made by the legislature.
What the court decided
The court said that the social and political context in which the new Constitution was developed was relevant. It noted that The Final Report of the Constitution of Kenya Review Commission described the JSC then as not independent and said that the judiciary was seen as “vulnerable to government pressures”. Changing how judges were appointed was intended to guarantee the integrity and independence of the judiciary. The court commented that appointment of judges should be carried out by proper decision- makers, in an open and predictable manner that guarantees the “quality and independence of mind of those selected for appointment at all levels of the judiciary”, so as not to cast doubt on the integrity of the judiciary as a whole.
Critically, the court observed that there were three stages in the appointment of the Chief Justice or Deputy: the selection of a qualified person for each position, submission of the name to Parliament for approval, and appointment of the approved person by the President.
Each stage was controlled by a different arm of government, precisely in order “to ensure that none of the three arms of the Government had the exclusive or upper role in the determination of who becomes the Chief Justice or the Deputy Chief Justice”. The court held the President has no role to play in determining which name is forwarded to Parliament for approval. It said that to decide otherwise would bring back the era of the 1969 constitution where the executive was heavily involved in appointing of judges, particularly because (quoting the CKRC about commissions including the JSC) “appointments were made by the President, dismissals were initiated by him/her and [commissions] finances were controlled by government ministries”. It would blur the clear distinction between the roles given to each of the three arms of government by the 2010 constitution.
In addition, the court found that the President’s or executive’s influence in the selection process of judges is intended to be restricted to the President’s appointment of some members of the JSC. He appoints the Attorney General,—the government’s legal advisor, who automatically sits on the JSC—and appoints to the JSC one woman and one man who are there to represent the public. The court found this to be proper: the JSC makes collective decisions reflecting the diverse interests represented by its members and not merely the influence of one particular person. The court held that, under the constitution, the JSC is required to promote independence and accountability of the judiciary and so must be allowed to carry out its functions without interference either by the executive or the legislature. The National Assembly could not be allowed to enact legislation that conflated the powers or roles of different state organs. This would be in effect amending the Constitution through the back door. The five judges of the court were therefore unanimous that the new section 30( 3 ) of the Judicial Service Act was unconstitutional.
Another important aspect is that the court stressed that separation of powers does not mean that each branch has no power to check the other branches. This court had the power “to safeguard, protect and promote” the constitution, and “the obligation to intervene in actions of other arms of Government” if they violate the constitution.
Why this Case is Important
An independent judiciary — and an independent JSC to support it— is crucial to protect the rule of law. This means not just that the constitution is protected and enforced, but that the ordinary law will be enforced. Crimes will be punished and contracts upheld, and rights to land protected, rather than the judiciary being influenced by those in power or those whose interests are to undermine the rule of law. This case is important because it protects the independence of the judiciary, and therefore its ability to protect the constitution, the rule of law, and human rights. The case also reiterates that all state organs and public officers, including Parliament and the President, must function within the limits prescribed by the constitution. Truly, a critical milestone in entrenching constitutionalism.
By Christine Nkonge
The author is Litigation Counsel with the Katiba Institute