1.  Introduction

At the core of the quest for a new constitution in Kenya was the need to restructure the government and this included re-configuring the relationship between the three arms of government.¹ There was a need to ensure sufficient checks and balances within government so that each arm of government functioned independently, but at the same time within defined parameters and spheres of operation, with appropriate oversight by the other arms.² A significant step towards achievement of this objective is the entrenchment of the principle of constitutional supremacy in the 2010 constitution of Kenya (the constitution). The constitution is the supreme law of the Republic, which binds all persons and all state organs.³ In addition, no person may claim or exercise state authority except as authorized under the constitution.⁴ In view of the limits imposed on state power and in line with the doctrine of separation of powers, all powers to be exercised in public functions must flow from the constitution. It also means that any act performed by any state organ or non-state actor outside the bounds of the constitution would be rendered unconstitutional.

In re-configuring the relationship between the arms of government, the constitution demarcates power vested in each branch of government and establishes a regime of cooperative government. The constitution envisages that executive authority is derived from the people of Kenya and is to be exercised in accordance with the constitution.⁵ In order to enhance oversight and impose constraints on the exercise of state power by the executive branch, the courts have been empowered to interpret the constitution and to make pronouncements on the constitutionality of acts of state organs.⁶ In this role, the judiciary is instrumental in adjudicating the constitutionality and legality of the (p. 287) exercise of state power by the executive branch. The roles of the executive and the judicial branch of government in Kenya as they discharge their role of checking and holding each other accountable is the subject of this chapter.

Following this brief introduction, the second section of this chapter will examine the relations between the judicial and the executive branch in the pre-2010 dispensation that informed the design of the structure of government in the 2010 constitution. The third section will discuss the influence of the executive branch over the judicial branch while the fourth section will address the question of judicial oversight over the executive branch in the post-2010 dispensation. The fifth section will review the lessons to be learned from the study of the relationship between the judicial and executive branches of government in Kenya.

2.  Overview of Judicial–Executive Relations in Pre-2010 Kenya

The central place of the judiciary in the new constitutional order is to be seen in the context of its evolution through the post-colonial period. The intricate interplay of the executive branch and the judiciary over this prolonged period kept the judiciary in a constant state of subjection to the caprices and concerns of the executive.⁷

In 1963, Kenya formally became an independent, sovereign state, ending decades of direct British colonial rule. Kenya’s 1963 independence constitution provided for a multi-party democracy, a freely elected bicameral parliament, and guaranteed judicial independence.⁸ While the independence constitution sought to establish a feasible constitutional order, it fell prey to numerous amendments. Of these amendments the High Court of Kenya has lamented as follows:

Since independence in 1963, there have been thirty-eight (38) amendments to the Constitution. The most significant ones involved a change from Dominion to Republic status, abolition of regionalism, change from parliamentary to a presidential system of executive governance, abolition of a bicameral legislature, alteration of the entrenched majorities required for constitutional amendments, abolition of security of tenure for judges and other constitutional office holders (now restored), and the making of the country into a one party state (now reversed). And in 1969, by Act. No. 5 Parliament consolidated all the previous amendments, introduced new ones and reproduced the Constitution in a revised form. The effect of all those amendments was to substantially alter the Constitution. Some of them could not be described as anything other than an alteration of the basic structure or features of the Constitution.⁹

Post-independence constitutional changes and legal amendments spanning over three decades undermined and weakened key institutions including the judiciary and Page Id: 287ReferencesConstitution of the Republic of Kenya: May 6, 2010 (Kenya [ke])Main Text, Chapter 1 Sovereignty of the People and Supremacy of this Constitution, Art.2 Supremacy of this Constitution., (1) OCWMain Text, Chapter 1 Sovereignty of the People and Supremacy of this Constitution, Art.2 Supremacy of this Constitution., (2) OCWMain Text, Chapter 9 The Executive, Part 1 Principles and Structure of the National Executive, Art.129 Principles of executive authority. OCWMain Text, Chapter 10 Judiciary, Part 2 Superior Courts, Art.165 High Court., (3) OCW(p. 288) parliament while strengthening the executive, particularly the presidency.¹⁰ As a result, the independence constitution lost much of its original identity and form.¹¹ The changes resulted in the centralization and monopolization of power by the executive, and minimized checks and balances on the executive by other institutions.

The president exercised extensive control over civic groups, the legislature, and most critically, the judiciary.¹² The judiciary during this period was subservient to the executive.¹³ The judiciary did not show the ability or inclination to uphold the rule of law against the express or perceived interests of the executive and individual senior government officials.¹⁴ This led Nowrojee to observe that ‘the more senior the official against whom the Bill of Rights [was] sought to be enforced, or the more influential the individual with an interest in the case, the greater the difficulty … for the judiciary to assume fully its constitutional role’.¹⁵

In defining the nature of the relationship between the executive and the judiciary, the independence constitution stated that ‘[a] judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with this section’.¹⁶ Thus the independence constitution provided for a complex process of the removal of judges, deliberately insulating them from executive power. The removal of a judge was only possible after a presidentially appointed tribunal had considered the matter and made recommendations to the president.¹⁷ However, in 1988, President Moi prevailed over parliament to pass a constitutional amendment with far-reaching implications for judicial independence. Parliament removed the security of tenure for judges.¹⁸ The blatant disregard for Page Id: 288ReferencesConstitution of Kenya (Amendment) Act (Kenya [ke]) Act No 4 of 1988Gathungu v Attorney General of Kenya and International Criminal Court, Sheria (intervening) and ors (intervening), Ruling, Constitutional Ref 12 of 2010, [2010] eKLR, ILDC 1602 (KE 2010), 23rd November 2010, Kenya; Mombasa; High Court ILDC(p. 289) a basic constitutional principle by the political branches of government underlined the subordinate status of the judiciary in Kenya.

The process of appointment of judges under the repealed constitution underlined the dominance of the executive branch. The Judicial Service Commission (JSC) played an important role in generating the names of those to be appointed to the position of judges of the High Court¹⁹ and the Court of Appeal by the president.²⁰ The JSC was composed of the Chief Justice, the Attorney-General, two judges appointed by the president, and the Chairman of the Public Service Commission.²¹ All JSC members were presidential appointees, either directly or indirectly, because he appointed the Attorney-General, the Chief Justice, and the Chairman of the Public Service Commission. It should be noted that the independence constitution did not provide for mandatory input by other stakeholders in the composition of the JSC.

Under the 1990 constitutional amendment restoring judicial tenure and security that had been removed in 1988, a judge could only be removed for physical or mental inability to execute the functions of the office or for misbehaviour.²² It is the president, however, who had the power to remove a judge upon the recommendation of a five-member tribunal appointed by him.²³ The mechanism for removal began with the Chief Justice suggesting to the president that such a course ought to be pursued. The president then appointed a tribunal to consider the matter and make recommendations. The president could also appoint a panel to consider the removal of the Chief Justice. These removal procedures left a lot to be desired. The security of tenure protections posed a number of problems. The executive could easily circumvent the procedures for independent judicial removal proceedings. Judges could be removed only by the recommendation of a five-member tribunal, but the president chose those members. This degree of presidential discretion and the composition of the independent tribunal raised questions about the protections provided for the security of judicial tenure.²⁴ Moreover, the repealed constitution was not clear on the legal character of the recommendations made by the tribunal to the president. It seemed that such recommendations were not legally binding on the president.

These factors led to the judiciary acting as an agency of the executive branch. Patronage and cronyism became endemic leading to the appointment of incompetent judges and magistrates.²⁵ The wishes of the executive branch were executed by both the superior and subordinate courts without deviation. In the rare instances where individual judges or magistrates demonstrated even the slightest evidence of independence, such judicial officers were either punished administratively or professionally ruined. The case of Justice Derek Schofield provides an example of a judge who was forced to resign for refusing to decide a case in the manner preferred by the executive branch. He Page Id: 289ReferencesConstitution of Kenya (Amendment) Act (Kenya [ke]) Act No 1 of 1990(p. 290) handled a case in 1987 in which the family of Stephen Mbaraka Karanja sought to have the police produce him in court after all efforts to trace him had failed following his arrest. When the judge made an order that the police should produce the subject, the executive through the Chief Justice intervened to have the judge reverse his order.²⁶ Given that he was an expatriate judge on contract, the Chief Justice advised him that his contract was in jeopardy. Instead of giving in to the demands of the executive branch, he opted to resign. Following his resignation, the matter was referred to a different judge by the Chief Justice and Justice Schofield’s orders for the police to produce Stephen Mbaraka Karanja were rescinded.

The absence of judicial independence also led to shocking instances of judicial timidity and complicity within the executive in the pre-2010 period.²⁷ The judiciary failed to uphold rights.²⁸ For example, the High Court in the case of Gibson Kamau Kuria v Attorney General,²⁹ in which the applicant applied to court for a declaration that his freedom of movement including his right to travel to and from Kenya had been contravened by the act of confiscation of his passport, held that it had no powers under the constitution to enforce the rights asserted by the applicant. The High Court found that section 84 of the repealed constitution that granted the court jurisdiction to enforce the repealed constitution was inoperative as no practice rules had been made to prescribe directions for accessing the court to enforce the Bill of Rights. This ruling has been criticized on the basis that there existed twenty years of litigation centred on section 84 of the repealed constitution as at the time of the decision.³⁰ It is arguable that it is the status of the applicant, who was a leading critic of the government, which played a part in the court departing from existing precedents to decline jurisdiction to hear the application for enforcement of rights.³¹

The judicial branch was crippled in its role as an independent, impartial agent of democratic governance. It is clear that apart from vesting enormous powers in the presidency, the repealed constitution also granted the institution overwhelming influence over the judicial functions of the government. These shortcomings of Kenya’s post-colonial constitutional dispensation, characterized by the dominant executive branch, and the accompanying disregard of democratic practices, led to agitation for constitutional reforms. Radical restructuring of the norms, institutions, and personnel that comprise the legal and political structures of the Kenyan state to restore the judiciary’s role as the guarantor of legality and the guardian of human rights became necessary.³²

Page Id: 290ReferencesKuria v Attorney General of Kenya, Misc Civ App No 550 of 1988, 1988, Kenya(p. 291) 3.  Executive Power Over the Judicial Branch in the Post-2010 Dispensation

The 2010 constitution of Kenya has fundamentally altered the defective post-colonial governance framework through various far-reaching reforms. The most critical of these reforms are the introduction of a new normative framework, constraining of executive power through the introduction of various checks on the executive, and the introduction of an expansive Bill of Rights. The constitution has meticulously defined, distributed, and constrained the use of state power along multiple lines.

The national executive authority of the Republic is vested in the president, the deputy president and the rest of the Cabinet.³³ The constitution provides that the composition of the Cabinet shall consist of the president, the deputy president, the Attorney-General, and not more than twenty-two Cabinet secretaries, none of whom shall be an elected member of parliament.³⁴ The interplay between the executive and the judicial branch envisages interdependence between the branches of government. However, care is taken to limit the interference of the executive branch in the operations of the judicial branch.

An empowered judiciary is one that is independent from undue interference from either state or non-state actors. In many respects, the constitution secures judicial independence from executive interference. The constitution provides in article 160(1) that: ‘In the exercise of judicial authority, the judiciary shall be subject to this Constitution and the law and shall not be subject to the control or direction of any person or authority.’ This is the foundational principle that informs the interaction and relationship between the judiciary and other state organs and non-state actors.

The constitution gives the judiciary relative administrative independence through the JSC.³⁵ The JSC derives its mandate from article 171 of the constitution. It has been vested with constitutional responsibility for promoting and facilitating the independence and accountability of the judiciary and the efficient, effective, and transparent administration of justice.³⁶ It has the following functions: recommending to the president persons for appointment as judges; reviewing and making recommendations on the conditions of service of judges and judicial officers and the staff of the judiciary; preparing and implementing programmes for the continuing education and training of judges and judicial officers; and advising the national government on improving the efficiency of the administration of justice.³⁷

The JSC is composed of eleven commissioners as provided by article 171(2) of the constitution. The Chief Justice is the Chairperson of the Commission. The other members of the JSC are: one Supreme Court judge,³⁸ one Court of Appeal judge,³⁹ one High Court judge,⁴⁰ one magistrate,⁴¹ the Attorney-General, two advocates,⁴² one Page Id: 291ReferencesConstitution of the Republic of Kenya: May 6, 2010 (Kenya [ke])Main Text, Chapter 9 The Executive, Part 1 Principles and Structure of the National Executive, Art.130 The National Executive., (1) OCWMain Text, Chapter 9 The Executive, Part 3 The Cabinet, Art.152 Cabinet., (1) OCWMain Text, Chapter 10 Judiciary, Part 1 Judicial Authority and Legal System, Art.160 Independence of the Judiciary., (1) OCWMain Text, Chapter 10 Judiciary, Part 4 Judicial Service Commission, Art.171 Establishment of the Judicial Service Commission., (1) OCWMain Text, Chapter 10 Judiciary, Part 4 Judicial Service Commission, Art.172 Functions of the Judicial Service Commission., (1) OCW(p. 292) person nominated by the Public Service Commission and lastly, two members of the public, appointed by the president with the approval of the National Assembly.⁴³ Members of the JSC, apart from the Chief Justice and the Attorney-General,⁴⁴ hold office for a term of five years and are eligible to be nominated for one further term of five years, provided they remain qualified.⁴⁵ This elaborate scheme of appointment of members of the JSC ensures that the Commission is not beholden to the dictates of the executive branch.

The authority and independence of the JSC has been affirmed by the High Court. In Judicial Service Commission v Speaker of The National Assembly & 8 Others,⁴⁶ the question was whether the president was right to set up a tribunal to remove some members of the JSC as recommended by the National Assembly. The president’s actions were based on actions undertaken by the National Assembly resulting in a petition to him under article 251(3) of the constitution which empowers the president to constitute a tribunal for removal of a member of a constitutional commission upon the recommendation of the National Assembly. The High Court held that the removal process was invalid since it was as a result of a process in parliament that took place in violation of an interim court order, hence making the president’s acts based on an invalid act. The High Court ruled that the president is required to establish a tribunal for removal of a commissioner of an independent commission if requested by the National Assembly, but in discharging this role the president must act in accordance with the dictates of the constitution. The High Court emphasized the fact that the JSC was a creature of the constitution, an independent commission subject only to the constitution and the law and, as provided under article 249(2) of the constitution, was not subject to direction or control by any person or authority. The Court proceeded to quash the appointment of members of the tribunal established by the president.

The role of the president in the appointment of judicial officers of superior courts has been limited to prevent executive interference in the judicial arena. Under the constitution, it is the president who formally appoints the Chief Justice and the Deputy Chief Justice in accordance with the recommendation of the JSC and subject to the approval of the National Assembly.⁴⁷ The latter requirements, namely, recommendations by the JSC and approval by the National Assembly is a means of checking the exercise of power by the president to avoid overriding political considerations in the process of appointment of the said judicial officers. With respect to the other judges of the Supreme Court, the Court of Appeal and the High Court, the president appoints them in accordance with the recommendations of the JSC.⁴⁸ The president cannot circumvent this process. In Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General⁴⁹ the High Court emphasized the fact that the president ought to receive recommendations from the JSC before he makes any nomination for the position of the Chief Justice for such a nomination to comply with the Page Id: 292ReferencesCentre for Rights Education and Awareness v Attorney General of Kenya, Petition 16 of 2011, 3rd February 2011, Kenya; Nairobi; High CourtConstitution of the Republic of Kenya: May 6, 2010 (Kenya [ke])Main Text, Chapter 10 Judiciary, Part 2 Superior Courts, Art.166 Appointment of Chief Justice, Deputy Chief Justice and other judges., (1) OCWMain Text, Chapter 10 Judiciary, Part 4 Judicial Service Commission, Art.171 Establishment of the Judicial Service Commission., (2) OCWMain Text, Chapter 10 Judiciary, Part 4 Judicial Service Commission, Art.171 Establishment of the Judicial Service Commission., (4) OCWMain Text, Chapter 15 Commissions and Independent Offices, Art.249 Objects, authority and funding of commissions and independent offices., (2) OCWMain Text, Chapter 15 Commissions and Independent Offices, Art.251 Removal from office., (3) OCWJudicial Service Commission v Shollei and Commission on Administrative Justice, Civ App No 50 of 2014, [2014] eKLR, 19th September 2014, Kenya; Nairobi; Court of Appeal(p. 293) constitutional requirements. The president withdrew his nomination of Justice Alnasir Visram as the Chief Justice after the High Court found that he had ignored the prescribed criteria for appointments to judicial office.

Also related to the power of appointment is the power of removal from office of a judge of the superior court. An institution upon which the executive can intrude with ease to remove judges cannot act with firmness to check the excesses of the executive. In this case, the president upon receiving a petition from the JSC setting out the grounds upon which a judge should be removed from office, should suspend the judge and proceed to appoint a tribunal within fourteen days. The tribunal will look into the matter and report on the facts, making binding recommendations to the president.⁵⁰ The mandatory nature of the need to comply with the prescribed procedure in the process for removal of a judge was affirmed by the High Court in Nancy Makokha Baraza v Judicial Service Commission & 9 Others.⁵¹ In this case, the Deputy Chief Justice challenged the process leading to her suspension from office for gross misconduct. The High Court held that the process of removal of a judge must respect the rights or fundamental freedoms in the Bill of Rights and must comply with the prescribed procedure in the constitution. However, given that in this particular case, the constitutionally prescribed process for removal for the removal of a judge had been adhered to, the Court declined to bar a tribunal formed to inquire into the conduct of the Deputy Chief Justice from proceeding with its work.

The constitution also provides for the establishment of a Judiciary Fund administered by the Chief Registrar of the judiciary.⁵² The fund is meant to be used for administrative expenses of the judiciary and such other purposes as may be necessary for the discharge of the functions of the judiciary.⁵³ Rather than the Treasury or the Ministry of Finance, the Chief Registrar prepares annual estimates of expenditure and presents them to the National Assembly for approval, providing the judiciary with control over its own budget and ensuring that the executive has no control over the judiciary’s funds. Upon approval of judicial financial estimates by the National Assembly, the expenditure of the judiciary becomes a charge on the Consolidated Fund and the funds are paid directly into the Judiciary Fund.⁵⁴ The establishment of the Judiciary Fund goes some way towards guaranteeing financial independence for the judicial branch and dismantling the grip of the executive branch over the judiciary.

It is clear from this that the president is vested with what are arguably ceremonial powers in the appointment and the dismissal process of judges. In addition, the creation and empowering of bodies and mechanisms such as the JSC and the Judiciary Fund guarantee the autonomy and capacity of the judicial branch. These new features in the Kenyan constitutional scheme have ensured that the executive branch has lost its former unbridled powers over the judicial branch.

Page Id: 293ReferencesBaraza v Judicial Service Commission, Petition 23 of 2012, 13th March 2012, Kenya; Nairobi; High Court; Constitutional and Human Rights DivisionConstitution of the Republic of Kenya: May 6, 2010 (Kenya [ke])Main Text, Chapter 10 Judiciary, Part 2 Superior Courts, Art.168 Removal from office., (5) OCWMain Text, Chapter 10 Judiciary, Part 2 Superior Courts, Art.168 Removal from office., (7) OCWMain Text, Chapter 10 Judiciary, Part 2 Superior Courts, Art.168 Removal from office., (9) OCWMain Text, Chapter 10 Judiciary, Part 4 Judicial Service Commission, Art.173 Judiciary Fund. OCWJudicial Service Commission v Speaker of the National Assembly, Petition 518 of 2013, [2014] eKLR, 15th April 2014, Kenya; Nairobi; High Court; Constitutional and Human Rights Division(p. 294) 4.  Judicial Oversight Over the Executive Branch in the Post-2010 Dispensation

An independent judiciary, the essential guardian of the rule of law, is the linchpin of the scheme of checks and balances through which the separation of powers is assured.⁵⁵ In recognition of this core role of the judiciary, the constitution expressly vests the exercise of judicial power in courts and tribunals ‘established by or under the Constitution’.⁵⁶ This is a departure from the old order where there was no express vesting of judicial power in the institutions that constitute the judiciary. The independence of the judiciary in discharging its functions is guaranteed by the entrenchment of the constitutional principle that judicial authority is not subject to control by any person or authority, but is only subject to the constitution and the law.⁵⁷ The constitution then proceeds to set up a system of courts and prescribe the jurisdiction of the various courts. Any dispute as to the interpretation of the constitution is to be resolved by the courts; any conflict in the relationships of the plurality of autonomous constitutional bodies, is also to be resolved by the courts; as is any grievance in respect of the rights and liberties of the individual.⁵⁸ The vesting of these functions on the judiciary depicts the constitution’s intent to make the courts the core agency for ensuring constitutionalism in the new dispensation.

The constitution limits executive power, and substantially regulates the individual official’s remit in public decision-making. It establishes a framework for rationality in the management of the executive’s domain. As Ojwang notes: ‘The political order has been reformed, or is being reformed, to vindicate the principle of checks and balances founded on regularity, legality and constitutional process.’⁵⁹ Under the constitution, it is the duty and obligation of the judiciary to enforce the constitution. Of this judicial role in the new dispensation it has been observed that:

Even as the era of raw, individual power is cast to the winds, the new epoch distinctly empowers one institution that was always in place albeit in enfeebled form-the judiciary. The reason is that it is this institution that, always, had a detailed scheme of guiding-steps for its actions: jurisdictional rules; procedural rules; natural justice; substantive limits defined by statute law; limits imposed by constitutional law. The moment the epoch of constitutionalism came, the rational path of governance became that which is defined by the judicial mandate. Indeed, constitutionalism has spawned the secondary ideology of judicialism. Judicialism has become the handmaiden of constitutionalism; and it follows that, of the three conventional arms of government, the one which has distinctly benefited from the changing political philosophy is the judiciary.⁶⁰

Page Id: 294ReferencesConstitution of the Republic of Kenya: May 6, 2010 (Kenya [ke])Main Text, Chapter 10 Judiciary, Part 1 Judicial Authority and Legal System, Art.159 Judicial authority., (1) OCWMain Text, Chapter 10 Judiciary, Part 1 Judicial Authority and Legal System, Art.160 Independence of the Judiciary., (1) OCWMain Text, Chapter 10 Judiciary, Part 2 Superior Courts, Art.165 High Court., (3) OCW(p. 295) Enforcement of the values and the principles of the constitution are mainly with regard to the role of the executive and administrative agencies. The judiciary in this sense has a duty to ensure that the executive branch adopts principles of good governance, is accountable, and respects and follows the letter and spirit of the constitution.

The judiciary has the power through judicial review mechanisms to review executive and administrative conduct or actions of the state, state organs, state departments, and state officials. Judicial review is meant to ensure that such conduct, actions, or decisions conform to the constitution and the law. Thus the judiciary is expected, while interpreting the constitution, to ensure that its supremacy is not compromised and further to declare void any legislation or conduct that is inconsistent with the constitution.⁶¹

The courts have reformed to the extent of boldly questioning executive decisions. In Independent Policing Oversight Authority & Another v Attorney General & 660 Others,⁶² the issue before the Court involved allegations of unfairness, irregularities, and corruption in the recruitment process for appointments to the National Police Service. There were allegations that the selection criteria were not known to the public and that if there were any guidelines or regulations governing the process, such regulations were made without public participation. The High Court held that the National Police Service Commission was required to promote the values and principles of transparency, accountability, and public participation whenever it discharged its functions. It found that the National Public Service Commission had not made recruitment guidelines public in violation of the principle of public participation in the enactment of legislation, regulations, and guidelines which is an important aspect of good governance recognized by the constitution of Kenya, 2010. The Court also found that the National Police Service Commission had acted ultra vires its mandate by delegating its powers of recruitment to sub-county recruitment committees. This led the Court to quash the outcome of the recruitment process of 14 July 2014 and make orders for the recruitment to be done afresh. Subsequent to this finding by the High Court, and when an appeal lodged by the government was pending before the Court of Appeal, Kenya suffered a terrorist attack that resulted in the killing of 147 students of Garrissa University College. The president in his address to the nation following the terrorist attack decried the small number of police officers available to act at the time of the attack, and ordered the trainees whose recruitment had been nullified by the High Court to report to the Police Training College. This order by the president generated a public outcry and the president was forced to withdraw the directive.⁶³ Subsequently, the Court of Appeal upheld the decision of the High Court cancelling the recruitment process.⁶⁴

The other area where the judiciary has questioned the exercise of executive authority is in the area of appointments to public office by the president and Cabinet secretaries. The High Court has nullified appointments to public office on several occasions. In Page Id: 295ReferencesConstitution of the Republic of Kenya: May 6, 2010 (Kenya [ke])Main Text, Chapter 1 Sovereignty of the People and Supremacy of this Constitution, Art.2 Supremacy of this Constitution. OCWMain Text, Chapter 10 Judiciary, Part 1 Judicial Authority and Legal System, Art.159 Judicial authority. OCWIndependent Policing Oversight Authority and Chesire v Attorney General of Kenya and ors, Petition 390 of 2014, [2014] eKLR, 31st October 2014, Kenya; Nairobi; High Court; Constitutional and Human Rights Division(p. 296) Benson Riitho Mureithi v J.W. Wakhungu & 2 Others,⁶⁵ the High Court held that it has the jurisdiction to inquire into the issue of propriety of appointment to public office. Further, the Court held that any state officer making an appointment has the responsibility to put in place a mechanism that would allow public participation and consideration of the suitability of the integrity of potential appointees as demanded by the constitution. Since the Cabinet Secretary for Environment, Water and Natural Resources in this instance did not involve the public when making appointments and did not consider the integrity of the appointee, the High Court nullified the appointment of the interested party as the Chairman of the Athi Water Services Board. Similarly, in David Kariuki Muigua v Attorney General & Another,⁶⁶ the High Court nullified the appointment by the Minister for Industrialisation of the Chairman of the Standards Tribunal on the grounds that there was no public participation in the appointment process. The Court observed that appointment to public office must involve a competitive process that enables public participation and upholds the principles of transparency and accountability in governance.

In the case of Abdi Yusuf v Attorney General and 2 others,⁶⁷ the president was barred by the High Court from resubmitting to the National Assembly for fresh approval, nominees for appointment as commissioners of the Teachers Service Commission on the basis that these nominees had earlier been rejected by the National Assembly. The president had resubmitted a list of nominees that had previously been rejected by the National Assembly on grounds of lack of regional balance and meritocracy. In disregard of the Teachers Service Act, the statute establishing the Teachers Service Commission (that required the president to submit new nominees), the president resubmitted the rejected list of nominees. The High Court held that the principles of rule of law and legality required the president to make appointments in accordance with statutory enactments. These decisions undoubtedly stand as examples of the judiciary circumventing attempts by the president to abuse his power of appointment.

The courts have also ordered the executive to discharge its constitutional and legal functions. In the High Court case of Amoni Thomas Amfry & Another v Minister for Lands & 8 Others,⁶⁸ the issue for consideration was whether the Court could issue an order directed at the president to gazette the Chairperson and members of the National Land Commission. The selection panel had shortlisted candidates, conducted interviews, and forwarded names to the president, who in consultation with the prime minister, nominated the Chairperson and members of the Commission. The National Assembly duly approved the names of persons so selected and forwarded them to the president to be gazetted. Subsequently, the president failed to gazette the appointments within seven days as provided by law. The issue before the Court was whether it could direct the president to comply with constitutional and statutory provisions. The High Court held that compliance with the provisions of the constitution and statute goes to the heart of the rule of law. Moreover, the Court observed that the rule of law is a recognized national value to which the Court must give effect. The High Court granted relief directing the president to comply with the law and officially appoint the Page Id: 296ReferencesAmfry and Shamsa v Minister for Lands and ors, Petition 6 of 2013, [2013] eKLR, 4th February 2013, Kenya; Nairobi; High CourtMuigua v Attorney General of Kenya and Minister for Industrialisation, Petition 161 of 2011, 24th February 2012, Kenya; Nairobi; High CourtMureithi v Wakhungu and Attorney General of Kenya, Petition 19 of 2014, 28th February 2014, Kenya; Nairobi; High Court; Constitutional and Human Rights DivisionYusuf v Attorney General of Kenya and ors, Petition 8 of 2013, 25th March 2013, Kenya; Nairobi; High Court(p. 297) Chairperson and members of the National Land Commission within seven days from the date of judgment. Subsequently, the president complied with the directive of the High Court and gazetted the Chairperson and members of the National Land Commission.

The courts have also questioned the use of presidential decrees that are not backed by law. In Attorney General & 6 others v Mohamed Balala & 11 others,⁶⁹ the Court of Appeal confirmed the High Court’s position that the requirement for presidential consent for persons wishing to acquire or dispose of first and second row beach plots in the coastal region was unconstitutional. The petitioners argued that there existed no legal backing for this requirement and that the requirement was discriminatory since it did not apply to the whole country but only to the coastal region. They also sought an order declaring that requirement of consent was illegal and discriminatory. In granting the orders sought, the Court noted that the requirement of presidential consent for the disposition or acquisition of first and second row beach plots was a contravention of the constitutional values of the rule of law, equity, non-discrimination, and transparency. The Court also noted that the requirement for presidential consent was an anachronistic provision, which has no place in present-day Kenya due to its discriminatory nature.

The advent of this new era where the judicial branch has questioned executive actions has not been without blemishes. The executive has been slow to comply with judicial decisions that are not in line with its policies.⁷⁰ This trend harms the institutional standing of the judiciary as it leads to perceptions that the judiciary cannot uphold the rule of law. The threat to the rule of law also follows from the reality that where the executive can arbitrarily decide not to comply with judicial decisions then the potential of courts acting as a check on executive arbitrariness is diminished. Moreover, non-compliance with judicial decisions is an affront to judicial independence and demonstrates lack of respect for the judicial branch by the executive.

The other affront that the judiciary has faced is public criticism by the leadership of the political branches for engaging in ‘judicial activism’.⁷¹ In this respect, the president has accused the judiciary of ‘frustrating the operations of the executive’.⁷² These criticisms of the judiciary for allegedly overreaching into the terrain of other arms of government show that the culture of executive dominance over other branches of government still lingers in the political landscape. Furthermore, public criticisms also diminish confidence in the judiciary since they create the perception that the judiciary is subservient to the executive. This means that the judiciary must remain resolute in affirming that it has a legitimate role in the supervision of the constitutionality of acts of other arms of government.

Page Id: 297ReferencesAttorney General of Kenya v Balala, Civ App No 191 of 2012, 13th March 2014, Kenya; Mombasa; Court of Appeal(p. 298) The bold judgments surveyed in this section are a far cry from the judicial subservience of the pre-2010 dispensation. Based on the cases discussed, it can be argued that the judicial approach to oversight over the executive branch has radically changed. Unlike in the past, the post-2010 judiciary has shown willingness to exercise, and has in fact exercised, its constitutional authority of judicial review to check the executive branch. The cases discussed in this section show the courts making progressive decisions that advance the rule of law in cases that have political consequences. However, compliance with court orders and decisions that question the executive branch remains a challenge.

5.  Conclusion

Whereas in the old dispensation the president had a free hand in the appointment of judges, the 2010 constitution has radically curtailed this role by vesting the role of identification of nominees to judicial office in an independent Judicial Service Commission. Unlike the JSC of the pre-2010 dispensation which was composed of members appointed by the president, the composition and manner of appointment of members of the JSC in the new dispensation, which is through election of the majority of the Commissioners by judges and members of the legal profession, leaves little room for executive manipulation of the JSC. The rules for removal of judges in the new dispensation guarantee that judges cannot be easily removed as a result of external pressure from the executive branch. Furthermore, guaranteeing the financial autonomy of the judiciary and the restatement of security of tenure as well as clear removal procedures for judges, have all contributed towards ensuring a degree of independence for the judicial branch.

The balance of power between the executive and the judiciary has been recalibrated in the post-2010 dispensation leading to the emergence of an emboldened judiciary that routinely questions the exercise of power by the executive branch. The jurisprudence developed by the courts in the post-2010 dispensation in the area of the exercise of presidential powers is particularly important in the context of Africa, where imperial and authoritarian presidency is the norm. Despite these positive developments, entrenching the rule of law remains a challenge in Kenya given that the executive branch has defied court orders in some instances. In addition, political leaders including the president have publicly criticized judges for questioning decisions made by the executive. Defying court orders and criticizing the judiciary lowers public confidence in the judiciary by portraying the judicial branch as subservient to the executive.