Inconsistency of section 15(2) of the Judicial Service Act with the Constitution to the extent that it confers authority on the President to appoint members elected and nominated to the Judicial Service Commission under article 171(2), (b), (c), (d), (f) and (g) of the Constitution.

Brief facts

The appellant contested the nomination of the 5^th respondent which the appellant together with the 8^th, 9^th and 10^th respondents had challenged in the High Court as being invalid for the reasons that it was done by the President as opposed to the Public Service Commission contrary to article 171(2)(g) of the Constitution. It was also contended that the 5^th respondent's appointment was illegal as the 5^th respondent was irregularly vetted by the National Assembly. It was also contended that the nomination of the 6^th and 7^th respondents nomination was not based on fair competition or merit and that the 6^th respondent failed to meet the integrity test under Chapter Six of the Constitution.  The nomination of the 7^th respondent was also contested on grounds that the National Assembly disregarded the fact that the 7^th respondents nomination was made before his predecessor resigned from office.

Issues

1. Whether there was a requirement for merit and fair competition in appointment of Commissioners to the Judicial Service Commission who represented the Public Service Commission representative and the people.
2. Whether section 15(2) of the Judicial Service Act was unconstitutional in so far as it failed to prescribe merit, diversity and fair competition as prerequisites for appointment of one person to represent the Public Service Commission and one woman and one man to represent the public in the Judicial Service Commission.
3. Whether section 15(2) of the Judicial Service Act  was inconsistent with the provisions of article 171(2) of the Constitution in so far as it assigned the President the role of appointing elected and nominated members of the JSC.
4. Whether the nomination and subsequent appointment of the 5^th, 6^th and 7^th respondents were valid.
5. Whether it was a disqualifying factor for a member of the Public Service Commisssion to be a retired public servant.
6. Whether to the extent that the National Assembly failed to interrogate the  6^th and 7^th respondents, before confirming their appointment to the Judicial Service Commission was contrary to the requirements of section 7 of the Public Appointments (Parliamentary Approval) Act, 2011.
7. Whether the court had powers to revoke the appointment of a Judicial Service Commission Commissioner on grounds of lack of integrity where the National Assembly had considered the issues of integrity and confirmed the nominee for appointment.
8. What was the role of the President in appointment of commissioners to the Judicial Service Commission?
9. Whether the Supreme Court when acting as a second appellate court could determine an issue that was not canvassed before the superior courts below it.

Relevant provisions of the law

Constitution of Kenya, 2010

Article 171(1) and (2)

171.      Establishment of the Judicial Service Commission

(1)        There is established the Judicial Service Commission.

(2)        The Commission shall consist of

(a)        the Chief Justice, who shall be the chairperson of the Commission;

(b)        one Supreme Court judge elected by the judges of the Supreme Court;

(c)         one Court of Appeal judge elected by the judges of the Court of Appeal;

(d)        one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;

(e)         the Attorney-General;

(f)         two advocates, one a woman and one a man, each of whom has at least fifteen years experience, elected by the members of the statutory body responsible for the professional regulation of advocates;

(g)         one person nominated by the Public Service Commission; and

(h)        one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.

Held

1. The appeal was brought as of right pursuant to aticle 163(4)(a) of the Constitution. From the petition in the High Court, the arguments before both superior courts below as well as the judgments of the two courts, the subject matter involved the interpretation and application of articles 171 and 250 of the Constitution.
2. The Constitution by force of article 2 was declared the Constitution; the law which bound all persons and all State organs; whose validity or legality was not subject to any kind of challenge. Any law that was inconsistent with it, was void to the extent of that inconsistency. Further, any act or omission in contravention of the Constitution was invalid, while every person was under obligation to respect, uphold and defend it.
3. The exercise of sovereign power of the people, delegated to State organs, the Legislature, the Executive, the Judiciary and independent tribunals were constrained by the principle that those organs may exercise no powers and perform no functions beyond those conferred upon them by law. The Constitution entrenched the principle of legality and provided the foundation for the control of public power.
4. Under article 259 of the Constitution provided that the Constitution must be interpreted in a manner that promoted its purposes, values and principles, advanced the rule of law, permitted the development of the law and contributed to good governance. The entire Constitution had to be read as an integrated whole, because the Constitution embodied certain fundamental values and principles which required that its provisions be construed broadly, liberally and purposely to give effect to those values and principles. Where words used in any provision of the Constitution were precise and unambiguous, then they had to be given their natural and ordinary meaning.
5. Article 171(2)(g) and (h) of the Constitution  when read together with articles 10 and 73(2)(a)  required merit and fair competition in appointments to the JSC. Those two articles dealt with the application of national values and principles of governance, integrity, fairness, transparency and accountability in selection, election or implementation of public policy decisions.
6. Membership to the JSC was four- pronged; by virtue of office, for example the Chief Justice and the Attorney General; through elections by peers, namely, representatives of the Supreme Court, Court of Appeal, High Court, the Magistracy and the advocates; by nomination by the PSC, and the fourth category was through appointment by the President.
7. The nominating entity was the PSC. A nominee of the PSC to the JSC had traditionally been a serving member. The Constitution of Kenya, 2010 simply stated a nominee of the PSC to the JSC shall be that one person nominated by the Public Service Commission. It did not state the person must be a member or chairperson of the PSC. One person was just one person, who must be nominated by the PSC.
8. It was not a disqualifying factor under article 233(3) of the Constitution for a member of the PSC to be a retired public servant. By section 8(2) of the Public Service Act, a member of the PSC was only required to be a citizen of Kenya; a holder of a degree from a university recognized in Kenya; with at least ten years experience in their respective profession; and met the requirements of leadership and integrity in Chapter Six of the Constitution.
9. Although the appellant pleaded before the High Court that the 5^th respondent had retired, no such evidence was presented, and more importantly the question was neither addressed nor determined by the High Court. The issue was neither canvassed by the parties nor resolved by the Court of Appeal.  Whether or not the 5^th respondent had retired was a question of fact, the consideration of which the Supreme Court was precluded by the terms of article 163(4) of the Constitution from entertaining because the superior courts below did not express any opinion on the matter.
10. Article 171(2)(g) of the Constitution provided that the JSC shall consist of, among other members, 'one person nominated by the Public Service Commission.' Nothing had been shown to us to suggest that the appointment of the 5^th respondent was made by President. Instead, the evidence on record demonstrated fairly clearly the steps taken upon declaration by the JSC of the vacancy for the representative of the PSC. The plain language of article 171(2) (g) simply required the PSC to present a nominee. The article, however, did not make provision of the mechanism and procedure of such nomination. Since the procedure for identifying its nominee was an internal affair, determined at the discretion of the PSC itself, the method adopted was consultative and inclusive.
11. One of the values and principles of public service in terms of article 232 of the Constitution was fair competition and merit as the basis of appointments and promotions in the service. PSC was entrusted to nominate one person to represent it in the JSC. The PSC Act under section 46(1) prescribed that where the PSC was required by the Constitution or any legislation to nominate or recommend a person for appointment, the Commission shall abide by the Constitutional requirement of fair competition and merit as a basis of appointment and ensure that the appointment facilitated achievement of a representative public service. PSC in identifying its nominee internally was guided by the values and principles espoused in the Constitution and the law. The fair competition and merit requirement must be seen in that context and circumstances. The commissioners themselves, as opposed to the members of the public or any other entity, including the court, were more qualified to determine the question of merit in the nomination. No member of the PSC complained of unfair treatment or discrimination.
12. After being nominated by the PSC, the 5^th respondents name was forwarded by the President to the National Assembly for vetting before appointment to the JSC. The 5^th respondent did not resist this process but indeed successfully went through it. Though the Court of Appeal, in allowing the cross-appeal, held that the vetting of the 5^th respondent was neither pleaded nor canvassed before the High Court, in the appellants submissions dated April 27, 2018 before the High Court addressed the irrationality of the vetting of the 5^th respondent. The issue was squarely before the High Court and the High Court was justified to determine it.
13. Whereas the vetting of the 5^th respondent by Parliament was not prejudicial to him or any party; State organs could only exercise the powers and perform the functions conferred upon them by the Constitution and the law. It was contrary to and inconsistent with the Constitution for Parliament to purport to vet the 5^th respondent. Membership of the JSC included one person nominated by the Public Service Commission.
14. Article 250(2) of the Constitution which provided for approval of Commissioners by the National Assembly was a provision of general application to all chapter fifteen commissions and offices, except to the extent that the Constitution provided otherwise. Apart from Chapter Fifteen, the Constitution made specific and distinct provisions for each of the ten Chapter Fifteen Commissions. They were constituted differently. Some had no set number of members, yet some had no procedures for appointment of the members.
15. Had the framers of the Constitution intended that the nominee of the PSC be vetted by Parliament, just like the two members representing the public under article 171(2)(h) of the Constitution they would have expressly made a similar provision. Where the framers required approval by Parliament of any appointment, they expressly said so in the Constitution.
16. There was no merit in the argument that the National Assembly disregarded the memorandum which had raised integrity issues against the 6^th respondent. The National Assembly considered the complaints, invited the 6^th respondent to respond and, in the end, expressed satisfaction with the explanation proffered.  It was the duty of the court to ensure that State organs complied with the Constitution, its values and principles and the law, when discharging their functions to obviate any danger of constitutional violation; and to determine whether anything said to be done under the authority of the Constitution or of any law was inconsistent with or in contravention of the Constitution. The only caveat was that in reviewing the administrative actions of those organs, the court must not substitute itself into the organs whose actions or decisions were the subject of review or substitute the impugned decision with its own decision.
17. The courts concern was limited to confirming and being satisfied that the National Assembly acted in accordance with the Constitution and the law. The record vindicated the conclusion by both courts. The National Assembly, relying on its own procedures and the Public Appointments (Parliamentary Approval) Act conducted an inquiry before satisfying itself that there were no impediments at that stage to disqualify the 6^th respondent. It was not for the court, in the absence of any violations by the National Assembly to review its decision. The Court of Appeal properly applied its mind to the law, the evidence and reached the correct decision.
18. While fair competition and merit were values and principles of public service, not all cases of appointment to a public office must be based on fair competition. It depended on the language of the provision of the Constitution under which the appointment was to be made. Article 171(2)(h) of the Constitution only required that for a person to be appointed to represent the public in the JSC, that person had to be either a woman or man, and the person must not be a lawyer. In nominating the person, those were the attributes that the President, acting in good faith and in the best interest of the public, must take into account. He must also consider merit, national values and principles, integrity and national diversity. Nomination by the President was not the end of the process.
19. In approving the nominee, the National Assembly was required to ascertain whether in making the appointments, the President took those factors into account. The suitability of the nominee was further tested by vetting by the Legislature. Members of the public had the opportunity to raise any issues on the candidates suitability to hold a public office. All of all the 11 members of the JSC, that was the only category where approval by the National Assembly was required before appointment.
20. A purposive and harmonious construction of articles 171, 248 and 250 of the Constitution left no doubt that the framers intended article 171(2) of the Constitution to apply exclusively to the process of appointment of members of JSC, separate and distinct from that of other Commissions and independent offices. Article 250 was a general provision dealing with Commissions and independent offices generally.  Article 171 was an exception to article 250, in many instances.
21. Just as the Constitution conferred discretion on the President to nominate the Attorney-General and Cabinet Secretaries, subject only to approval by the National Assembly, so did it permit the President to nominate a man and a woman, not lawyers, to represent the public in the JSC after approval by the National Assembly.  As far as the nomination of two members of JSC under article 171(2)(h) was concerned, fair competition was not a mandatory requirement; and that where the Constitution itself made provision on the manner and process of identification and appointment of members. The court may not question the exercise of discretion in the appointment as long as it was exercised in accordance with the Constitution and the law.
22. Section 15(2) of the  Judicial Service Act was enacted to give effect to the provisions of article 171(2) of the Constitution. There was a general presumption that every Act of Parliament was constitutional, and the burden of proof lay on the person who alleged otherwise.
23. Section 15 could not prescribe prerequisites for the nomination of a representative of the PSC and the two representatives of the public that exceeded the constitutionally prescribed requirements. Fair competition in the identification and nomination of a representative of the PSC was not a constitutional imperative specified in that regard. Fair competition was not a mandatory requirement.
24. Only under article 171(2)(h) of the Constitution did the President have the mandate to nominate two persons, a man and a woman, who were not lawyers, to represent the public. That was the scope of the Presidents role regarding the JSC and its membership. To the extent, therefore that section 15(2)(a) and (b) required that the names of all the other nominees who were not representatives of the public but were elected by their peers through their professional bodies, or nominated by the PSC, to be submitted to the President for appointment; the section was ultra vires to the express provisions of the Constitution. The section donated to the President functions that went beyond his powers under article 171(2)(h) of the Constitution.
25. The appointment envisaged in article 250(2) of the Constitution could only apply and was limited to the two members representing the public. The only time the word 'appointed' was used in the entire article 171, was in relation to those two members. For the elected members, the appointment was concluded upon the declaration of the results of the election. The next phase of gazettement of names and the taking of the oath were only final formalities before assumption of the office.
26. The Court of Appeal erred in holding that  section 15(2) of the Judicial Service Act merely replicated the requirements of the Constitution. Section 15(2) contradicted article 171 of the Constitution. It directed the nominating bodies of members under article 171(2)(b), (c), (d), (f) and (g) to submit the names of their nominees to the President; and the President to appoint the nominees as members of the Commission within three days of receipt of the names, while nowhere in article 171 was there a requirement to submit the names to the President or for the President to appoint the concerned members. Once elected by different entities under (b), (c), (d) and (f) or nominated by the PSC under (g), those persons became members of JSC. It was a contradiction of terms to suggest that elected members were also at the same time appointed.
27. Section 15(2) of the Judicial Service Act  was inconsistent with the provisions of article 171(2) of the Constitution in so far as it purported to assign the President the role of appointing elected and nominated members of the JSC. It infracts the spirit and letter of articles 1(3) and 2(2); that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution; and that no person may claim or exercise State authority except as authorized under the Constitution.
28. The only instance where approval of the National Assembly was required in section 15(1) of the Judicial Service Act, was in relation to the two members under article 171(2)(h) of the Constitution, to represent the public. The only member of the JSC who was irregularly vetted by the National Assembly was the 5^th respondent. That vetting was superfluous, void and of no legal effect since it was not done in accordance with the Constitution.
29. Section 15 of the Judicial Service Act did not violate article 250(2)(a) and(3) of the Constitution in so far as it did not prescribe merit, diversity and fair competition as prerequisites for the appointment of a representative of the PSC and the two members to represent the public in the JSC under articles 171(2)(g) and (h), respectively.
30. The 5^th, 6^th and 7^th respondents were duly nominated and in the case of the 6^th and 7^th respondents, approved by the National Assembly, after satisfying itself as to their suitability for appointment. The approval of the 5^th respondent by the National Assembly, was however not necessary.