Chief Justice Mutunga leaves office on 17th June.

Kenya has been extraordinarily lucky in his appointment. He has carried out major reforms in the judicial system, abolished the pompous practices of judges, reached out to the people, and developed constitutional jurisprudence from which judges and lawyers can draw inspiration for years to come.

The challenge for us now is to find a suitable successor—not an easy task. He was appointed when we had a coalition government and our politics were not so divisive, nasty as now.

Free from any political pressure, the independent Judicial Service Commission (JSC) could follow the process for appointment to the letter.

For many Kenyans its highlight was his lengthy interview by MPs, full of searching and even personal questions (tough but not malicious), televised and watched avidly all over East Africa. I remember receiving phone calls from friends in Tanzania and Uganda alerting me to the programme.

The interview was also watched by South Africans who told me that our process was more impressive than theirs, despite theirs being extraordinarily participatory and transparent. From my perspectives, not only were we getting an excellent CJ but were also celebrating a triumph of the Constitution. Willy Mutunga did not let us down.

Now

My friends tell me that that golden age is gone—it had but a brief tenure. Everything has been politicised. Relations between political leaders have never, publicly, been so bitter, indeed vindictive. The prize of the capture of the state has never been so tantalising—and rich.

Neither the government nor the opposition have the least bit of respect for the Constitution. There is no hesitation at the use of violence, inflicted on innocent Kenyans, brute force replacing the law and destroying their rights and freedoms.

The president and his deputy have used their powers of appointment to state and parastatal offices liberally as patronage, to buy and solidify their political support regardless of constitutional rules of integrity and fitness for office.

There is little respect for the rule of law and the separation of powers—under which the judiciary is the ultimate custodian of the Constitution. We may well be at the edge of a civil war.

Politicising the appointment of judges?

Many people think that this is hardly the time for an impartial process for the appointment of the CJ and other judges.

They say that some judges have already been politicised. And, more worryingly, they say that the president has tried to politicise the Judicial Service Commission (JSC) in his recent appointments of two of its members, supposed to represent the entire community of Kenyans.

Additionally, he tried, unsuccessfully, to change the law so that he would make the ultimate decision on the CJ and DCJ. It was easy enough to push it through the National Assembly, given his majority and the lack of principles among numerous parliamentarians.

But the judiciary, in a considered judgment, decided that the amendment was unconstitutional—against the very principle of the separation of powers. But for this courageous stand of the High Court, we would have witnessed the end of the independence of the judiciary—and the demise of the Constitution. And then back rapidly to the dark days of Jomo and Moi.

Importance of an independent judiciary

The independence of the judiciary is critical for a number of reasons. It is central to the maintenance of the values, institutions, and processes of the state.

Unlike many constitutions, this one is full of values that the state and indeed civil society must observe (in Article 10, hopefully familiar to most Kenyans). Contrary to the propaganda of his followers, the president is not above the law, and must exercise his power only in accordance with the Constitution and its values.

Otherwise his conduct is unconstitutional. Another primary responsibility of the judiciary is to maintain the balance, prescribed in the Constitution, between the different organs of the state, including the centre and devolution—a task it has been called upon to perform several times.

The judiciary has been given responsibility for the protection of our rights and freedoms, for which Kenyans fought bitterly, first the British, and then the local, imperialists. Courts have been given extensive powers to ensure that rights are protected, even to the extent of creating a law on their own initiative.

Access to courts is made easy (even though the government has little and late for legal assistance to the poor). The fundamental rule of constitutional interpretation is the promotion of its purposes, values and principles and advancement of the rule of law and human rights.

All these requirements place a heavy burden on the judiciary. On the whole, judges have discharged their responsibilities with great courage and distinction: diligent, focused, impartial and true to their task, showing great knowledge of the law—and above all, independent.

Truly our unsung shujaa, without whom the Constitution would have atrophied.

Threats to independence

Independence, as the Constitution states and as judges have elaborated, is a culmination of several factors—“an appropriate and [impartial] appointment process; subject to strict procedures for removal of judges, a fixed term in the position; and a guarantee against external pressures”, the most important of which are the first and the last.

The role of the JSC is critical to the achievement of these objectives, following detailed rules and procedures prescribed in the Constitution and supporting legislation. Another worrying factor is the president’s predilection to interfere in matters that do not belong to him.

This is compounded by the poor performance or weakness of two key elements of the legal and constitutional system, the AG and the DPP. The AG, ignoring the law, seems to have repeatedly given the president the advice he wants to hear.

The dangers facing us were captured vividly and succinctly—and unanimously– by the High Court bench of 5 judges in the case concerning president’s claim to choose which appointments of judges he would approve:, “Opening a window for the President, even in a small way, to decide which nominees to appoint and which ones to reject would be a relapse to old system which was overwhelmingly discarded by Kenyans in a plebiscite.

It would open the window for the reintroduction of manipulation and horse-trading in the process of appointment of Judges.

To do so would open the process to contamination by the ills that informed the transformation in which Kenyans discarded the old process of appointment of judges which was besmirched with partisanship, nepotism, negative ethnicity and tribalism, cronyism, patronage and favouritism with the current one that is meant to espouse the values and principles of governance set out in Article 10 of the Constitution which include non-discrimination, good governance, integrity, transparency and accountability”.

They concluded that the president’s action in their view “was clearly against the letter, spirit and tenure of the Constitution.”

How do we preserve the independence and effectiveness of the appointment and responsibilities of Chief Justice and her colleagues.

This complex matter will be explored in detail in future articles in Katiba Corner and no doubt other places. For now it is sufficient to say that we need a vigorous public debate on the importance of the independence of the judiciary and how we can promote it.

We all, including the president, need to recognise the independence of the JSC; and the JSC, though perhaps a little shaken by presidential resistance and other matters touching Supreme Court judges, must resolve to stick meticulously to its mandate.

The process for appointment of the CJ and other judges must follow strictly the Constitution and Judicial Service Act, regarding qualifications for appointments, and the procedures (including transparency and participation). We must start a debate on and civic education in, the importance of judicial independence so appointments are not the matter for an elite group, but is for all the people—in the spirit of the Constitution. Watch this space.

Yash Pal Ghai

The author is a director of Katiba Institute