When the President breaks the Constitution: What then?

Recently, Kenya’s President Uhuru Kenyatta ‘approved’ the appointment of 11 judges out of the 25 nominated by the Judicial Service Commission (JSC). It is said that he is studying the remaining list of names before he decides on whether to approve them, but no indication of what he is pondering over. He has also not so far appointed any of the three nominees to the Judicial Service Commission who are elected or nominated by different constituencies (presumably he is still studying that list). These nominations were submitted between last December and early this year. With due respect, the President does not know Kenya’s Constitution under which he was elected and now governs the country. The rules for the appointment of judges and JSC members are set out in the Constitution and are very clear.

Except for the appointment of the Chief Justice and the Deputy, the President has absolutely no discretion over judges. The JSC makes ‘recommendations’ and the President appoints. The list does not go to Parliament, as many other types of appointments. The reason for this rule was to enhance the independence of the judiciary, given its subordination by previous presidents. Those who gave their proposals to the Constitution of Kenya Review Commission (CKRC) were unanimous in asking for appointment of judges by the JSC, by itself, to ensure competence and independence. The same goes for the members of the JSC. The President is required to respect, uphold and safeguard the Constitution. He has set out deliberately to break the Constitution—not for the first time.

Both the JSC and the Law Society have requested the President to make the appointments in view of judiciary’s heavy workload. They have also been concerned to ensure the proper functioning of the independent JSC critical to the proper operation of the judicial system. The President has sat on it the lists for nearly over half a year (in the case of the JSC, the law says nominees must be appointed within three days). Assuming that no president under the new Constitution would breach its provisions, the Comitte of Experts (trusting presidents more than CKRC) gave the president complete immunity from personal criminal and civil liability. So what do Kenyans do if the president deliberately breaches the Constitution as in this case?

Well, they can in the most servile language (some Kenyans are very good at that) remind His Excellency of the pending nominations, acknowledging at the same time that he is busy with more important state affairs (what the Law Society of Kenya nearly did). What if this does not succeed? You can always try the Attorney General.

The Attorney General is the legal adviser to the government and it is his duty to remind busy presidents of minor affairs like the judiciary, which might require a few minutes of their attention. The AG is as much bound by the Constitution, nay even more, than us mere citizens. It is also his duty to “promote, protect and uphold the rule of law and defend the public interest”. It is on the basis of this provision that Githu Muigai introduced the Office of the Attorney General Bill (assuming a whole of powers not given in the Constitution)—and got it passed.

So what has Githu been doing (apart from the ICC and Anglo-Leasing)? To be fair to him, he probably did tell Uhuru he should appoint, but sensing Uhuru’s view on the matter, he quickly changed his opinion. No one can tell the President what he should do, especially if he has no stomach for it.

If Githu does not or cannot help, how about impeachment? The president can be impeached for one of three reasons: (a) gross violation of the Constitution or any other law; (b) committing a crime under national or international law; or (c) gross misconduct. For those who believe that the President has broken the Constitution, the ground for impeachment is obvious. But then start the difficulties.

Impeachment can only be initiated by a member of the National Assembly, where a vote of two-thirds of all its members is necessary to move the matter forward, sending it to the Senate. The Senate will set up a committee, which may dismiss the charges, otherwise it would be voted on by the entire Senate, again by two-thirds of all its members. This is no easy matter—and can be extremely lucrative to members of both houses. Readers will remember that veteran parliamentarian, Martha Karua who once said that on significant votes, more money changes hands in Bunge than ever in the history of Sotheby’s auctions, even when a Picasso or Marilyn Monroe’s dress was on sale. The issue will inevitably be politicised—and for the time being Uhuru can easily block it at the first step.

So what should we do? As Kenyans do, make some noise, hold a press conference, and move on?

Prof Yash Pal Ghai , a retired academic, was chair of the Constitutional Review Commission of Kenya (CKRC).

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