No legal basis for a member of the Judicial Service Commission nominated under the Constitution to be approved by the National Assembly before appointment.
On March 9, 2018, the 3rd respondent, a justice of Court of Appeal was re-elected by the justices of that court to serve a second term as their representative to the 5th respondent, the Judicial Service Commission (JSC). Thereafter, his name was forwarded to the President for appointment as a member of the JSC. Instead, the President, in turn, dispatched the name to the National Assembly (the 2nd respondent) for approval before appointment. That action was the gravamen in the original grievance; whether Parliament could vet for approval a member of the JSC who had been democratically elected by his or her peers.
The JSC and the Law Society of Kenya (the appellant) by separate letters objected to the intended exercise, pointing out that it was not only unconstitutional but also an interference with the independence of the nominating institution, the Judiciary (the Court of Appeal). The National Assembly responded and insisted that the scheduled hearing would proceed, precipitating the action before the High Court. The High Court found that the requirement relating to approval of nominees by the National Assembly in article 250 of the Constitution of Kenya, 2010 (Constitution) did not apply to JSC commissioners, except those appointed by the President under article 171(2)(h) of the Constitution - one woman and one man to represent the public.
Aggrieved, the 1st respondent filed an appeal at the Court of Appeal while the appellant filed a cross appeal. The Court of Appeal dismissed the 1st respondent’s appeal as well as the appellant’s cross-appeal and held that, Parliament, in enacting section 15(2) of the Judicial Service Act (JS Act) was guided by article 171(2) of the Constitution which created four categories of members and catered for appointment procedure for each. More specifically, Parliament was clear that the only persons to be subjected to approval hearing in the National Assembly were the two candidates representing the public, and no other. As such, the 3rd respondent, having been elected by his peers as a member of the JSC, was not subject to approval by the National Assembly. In rejecting the ground of unconstitutionality of section 15(2) of the JS Act, the court held that the President’s duty was simply to appoint an elected commissioner within three days of submission of the nominee’s name. Aggrieved by the Court of Appeal’s decision, the appellant lodged the instant appeal.
- Whether elected members of the Judicial Service Commission ought to be vetted and approved by the National Assembly before being appointed.
- Whether section 15(2) of the Judicial Service Act was inconsistent with article 171 of Constitution on the establishment of the Judicial Service Commission to the extent that it donated to the President the power to appoint elected and nominated members of the Judicial Service Commission.
- Whether section 15(2) of the Judicial Service Act was unconstitutional in as far as it purported to direct a specific timeline in which the President was to appoint individuals to the Judicial Service Commission.
- Whether article 171 of the Constitution on the establishment on the Judicial Service Commission was a self-executing provision.
- Whether the President’s power to appoint a Court of Appeal Judge elected by judges of the Court of Appeal as member of the Judicial Service Commission was only ceremonial.
- Whether the President’s appointing role of Judicial Service Commission commissioners and the National Assembly’s approval role would interfere with the independence of the Judiciary and the Judicial Service Commission.
- Who ought to issue the gazette notice signifying the appointment of elected or nominated representatives in the Judicial Service Commission?
- Whether the three stages of appointment of commissioners to the Judicial Service Commission were mandatory.
Relevant provisions of the law
Judicial Service Act, No 1 of 2011
Section 15 - Procedure of appointment
(2) Where the nominations are to be made by bodies specified under Article 171(2)(b), (c), (d), (f) and (g) of the Constitution—
- the respective nominating body shall submit the name of its nominee to the President; and
- the President shall, within three days of receipt of the names, appoint the nominees as members of the Commission.
- The court’s jurisdiction flowed from the Constitution and the applicable statutes. Therefore, even if the question of jurisdiction was not brought up by the parties, it was the court’s duty, as a matter of practice to independently satisfy itself that it was legitimately seized of each matter before it. The appeal was brought as of right pursuant to article 163(4)(a) of the Constitution. From the petition filed in the High Court, the memorandum of appeal in the Court of Appeal, the arguments before and the judgments of the two courts below, as well as the pleadings and arguments in the instant court, the subject matter in controversy involved the interpretation and application of articles 171, 248 and 250 of the Constitution. The appeal met the principles enunciated in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another, SC. Pet. No. 3 of 2012;  eKLR.
- By article 259 of the Constitution, courts were enjoined in construing the Constitution to promote its purpose, values and principles; advance the rule of law, human rights and fundamental freedoms in the Bill of Rights; permit the development of the law; and contribute to good governance. To construe the import and tenor of any provision of the Constitution, 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 purposively to give effect to those values and principles. Where words used in any provision of the Constitution were precise and unambiguous then they must be given their natural and ordinary meaning. The words themselves in many situations declared the intention of the framers.
- From article 171(2)(c) of the Constitution membership to the JSC was four- pronged; by virtue of office, for example, the Chief Justice and the Attorney-General, who remained chairperson and member, respectively, despite the term of five years and a further one term of five years applicable to other members. There were those members who were elected by peers, namely representatives of the Justices of the Supreme Court, Court of Appeal, High Court, the magistracy and the advocates. The third category comprised a member nominated to represent the Public Service Commission (PSC) and the final category were two members, one woman and one man, not being lawyers, appointed by the President to represent the public.
- The name of the 3rd respondent was forwarded to the 2nd respondent for approval hearing ostensibly on the force of articles 132(4) and 250(2) of the Constitution, as well as section 15(2) of the JS Act. Article 132(4) embodied the specific function of the President to perform any other Executive function provided for in the Constitution or in national legislation and, except as otherwise provided for in the Constitution, may establish an office in the public service in accordance with the recommendation of the PSC. That could not be the basis upon which the President acted when he forwarded the 3rd respondent’s name to the 2nd respondent. Similarly, the plain language of section 15(2) did not vindicate the action.
- Article 250 of the Constitution was contained in Chapter Fifteen. The ten commissions in the article were collectively and generally referred to as Chapter Fifteen commissions. Article 250 prescribed the composition of commissions, appointment and terms of office of the commissioners. Chapter Fifteen which contained articles 248 and 250 applied to all the ten commissions, including the JSC, save only to the extent that the Constitution provided otherwise.
- Article 171 the Constitution was fully self-executing. From a plain reading of the three articles, 171, 248 and 250, the former was intended to apply exclusively and specifically to the establishment of the JSC, its composition, mode of appointment and term of office of its members, while article 250 was to regulate and guide on the composition, appointment and terms of office of commissions and independent offices generally. The proviso in article 248(1) acknowledged the existence of other constitutional provisions, specific to other commissions which could differ from the provisions of Chapter Fifteen. Chapter Fifteen, for that reason, made provisions of general application to fill in the gaps in respect of composition, appointment and terms of office of any commission.
- Article 250(2)(a) of the Constitution directed that, in the constitutional commissions where the procedure and manner of identification and recommendation for appointment of the chairpersons and commissioners were not provided for in the Constitution, recourse would be to national legislations. In contrast, by article 171, the Constitution itself provided for the means of identifying and methods of appointment of each of the four categories of membership of the JSC, occasioning no need to resort to either article 250 or national legislation for that purpose.
- It was the lacuna in some of the commissions that article 250 of the Constitution sought to fill. Where no particular provision of the Constitution specified the number of members to a commission, the answer would lie in article 250 which, as a general guide limited such membership to at least three, but not more than nine.
- If the manner of identification and recommendation for appointment of the chairperson and each member of a commission was not specified elsewhere in the Constitution, reference must be made to article 250 of the Constitution. In all such instances of lacuna, article 250 was intended to fill the same by directing that the appointment of the chairperson and each member be subject of approval by the National Assembly; and thereafter appointment by the President. The article directed further that save for ex officio members, the rest of the members be appointed for only a single term of six years. Because article 171 of the Constitution was self-executing, those conditions did not apply to its members.
- Article 250(1) of the Constitution was a general provision article, it provided that membership to each commission “shall” not consist of more than nine members, yet pursuant to article 171(2) of the Constitution, the JSC consisted of eleven (11) members. Article 250(6)(a) of the Constitution stipulated that a member of the commission shall be appointed for a single term of six years and was not eligible for re-election. In respect of the JSC, article 171(4) provides that members of the JSC, apart from the Chief Justice and the Attorney-General shall hold office for a term of five years and shall be eligible to be nominated for one further term of five years.
- The direct involvement of the President in the appointment of two members to represent the public in the JSC could only be explained on the basis of the nature of the expanded functions of the JSC, including its role to advise the National Government on ways of improving the efficiency of the administration of justice (article 172(1)(e) of the Constitution). Moreover, it was in line with the provisions of article 10 of the Constitution and the centrality of public participation and transparency at all levels of administration of justice. The inclusion of the PSC nominee in the JSC, on the other hand, could be explained away by the long history of the two commissions.
- The commissions were far from being homogeneous, contrary to the submissions that they all drew from article 250 of the Constitution. There were no typical common features between the commissions. The principle of checks and balances, the doctrines of separation of powers and independence of the three branches of Government from each other were highlighted in the deliberate distinct provisions.
- Article 171 of the Constitution was a self-executing provision; and it was drafted in precise and unambiguous language, it could only be given its natural and ordinary meaning. The words used in the article speak the intention of the Legislature. The intention was to have the constituents in the Court of Appeal to determine for themselves, through the ballot, the person to represent them in the JSC, without the involvement of third parties who had no interest in affairs of that court.
- Had the people of Kenya or the Legislature intended that all elected members of the JSC be first approved by the National Assembly before being appointed, nothing would have been easier than to expressly state so, the same way they had done for the two members representing the public. In the case of the two, article 171(2)(h) of the Constitution unequivocally declared that, before their appointment, the National Assembly must give an approval.
- Since the promulgation of the Constitution, all past elected members of the JSC, except in one instance, had never been subjected to approval hearing by the National Assembly. In his first term, the 3rd respondent did not go through it, because there had never been any constitutional or legal imperative to do so. The resolve to subject him to parliamentary approval was not only in bad faith, but amounted to a breach of his legitimate expectation and a fundamental contravention of the Constitution.
- To suggest that the 3rd respondent was bound to be vetted and could only qualify for appointment after approval by the National Assembly, was to attack the spirit and letter of articles 1(3) and 2(2) of the Constitution; that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person could claim or exercise State authority except as authorised under the Constitution. The Constitution did not permit the 2nd respondent to vet and approve an elected member of the JSC.
- There could be no better vetting of a representative’s suitability to a position than by peers or those whose interest he was expected to represent than in a transparent and democratic election. The electorates based their choices on considerations relevant to their needs; the needs they alone appreciated in a manner no other body could replace or replicate. Purely, by the fact of his election by the justices of the Court of Appeal, the 3rd respondent, without more, became a member of the JSC, only awaiting the administration of the oath under article 74 of the Constitution as read with section 40(1) of the JS Act before assuming the functions of the office of commissioner of the JSC. There was no basis, constitutional or legal for a member of the JSC elected or nominated under article 171(2)(b), (c), (d), (f) and (g) to be vetted and approved by the National Assembly before appointment.
- The JS Act was enacted in 2011 to make further provision with respect to the membership and structure of the JSC and for connected purposes. The procedure of appointment was divided into section 15(1) and (2) of the JS Act. The former was specific to appointment by the President with the approval of the National Assembly of two members under article 171(2)(h) of the Constitution, one woman and one man to represent the public. Section 15(2) on the other hand related to members appointed in accordance with article 171(2) (b), (c), (d), (f) and (g), who were elected or nominated.
- The nominating bodies envisaged did not include the JSC, but were the judges of the superior courts, the magistrates, the Law Society of Kenya and the PSC. By section 15(2) of the JS Act those bodies were required to submit the names of their nominees to the President; and the President, in turn was expected, within three days of receipt of the names, to appoint the nominees as members of the JSC. Because the categories of the nominees were those elected or nominated, section 15(2) did not require parliamentary approval, unlike those in section 15(1).
- There was a general rebuttable presumption that every Act of Parliament was constitutional and the burden of proof lay on the person who alleged otherwise. In determining whether a statute was constitutional or not, the court must ascertain the object, purpose and effect of that statute; to discern the intention expressed in the Act itself. A statute could not make provision whose effect contradicted the Constitution or placed additional requirements above those set out by the Constitution.
- On statutory interpretation of a statute, the function of the courts was to interpret the law, not to make it. A statute was an edict of the Legislature and the conventional way of interpreting or construing a statute was, in the first place, to seek to understand the intention of its maker. Where the meaning of a provision was plain and unambiguous, no question of interpretation or construction arose. It was the duty of the judges to apply such a law as it was. But if it was open to more than one interpretation, then the court had to choose the interpretation which represented the true intention of the legislature, the legal meaning of the statutory provision.
- The language of article 171 of the Constitution was unambiguous in so far as vetting and approval by the National Assembly was concerned. The only members who, according to article 171(2)(h), must be approved by the National Assembly after appointment by the President, were one woman and one man to represent the public. All the other members were either elected under article 171(2)(b), (c), (d), (e), (f) and (g), or nominated under article 171(2)(h). An endorsement of a candidate through an election was another form of vetting by those he or she would be serving. In the instant case, it was only the judges, magistrates and lawyers who could choose for themselves their representatives. Parliament had no part to play, except to the limited extent explained earlier, in respect of the two members.
- The powers of Parliament to vet and approve any constitutional and statutory appointments were circumscribed by section 3 of the Public Appointments (Parliamentary Approval) Act, 2011 as an appointment under the Constitution or any other law for which the approval of Parliament was required was not to be made unless the appointment was approved or deemed to have been approved by Parliament in accordance with the Act.
- Parliament would only exercise its powers to vet and approve candidates for appointment to a public office if, and only if the Constitution or any other law required the approval of Parliament. Section 15(2) of the JS Act did not contain any requirement for approval by Parliament. Because there was no such requirement in article 171 of the Constitution, except for (h), the arguments that all commissioners of the JSC ought to be approved by Parliament must fail for lacking constitutional or legal foundation.
- From the history leading to the promulgation of the Constitution in 2010, the intention of the drafters was to have an independent JSC and Judiciary. Article 251 of the Constitution guaranteed true independence of the JSC, not only by re-stating its independence from direction or control by any person or authority, but by securing the tenor of the commissioners, who could be removed only in accordance with that article. Its financial autonomy, with a separate vote is equally assured.
- A purposive interpretation of all articles 249(2) and 251 of the Constitution would lead to the inevitable conclusion that there was no intention of the framers to subject the 3rd respondent or, for that matter, any of the elected members of the JSC to an appointment by the President. It was a contradiction in terms and an inherent absurdity to suggest that members elected by their peers or nominated by a State organ could, at the same time be appointed by a different person or authority.
- There could be no justification for the invocation of article 250(2) of the Constitution as the basis for the requirement of appointment by the President of the 3rd respondent as a member of the JSC. Where the framers intended to vest in the President the power to appoint members of the Chapter Fifteen commissions, they expressly provided for it. A reading of article 132(2) of the Constitution did not yield the conclusion that the power of the President to appoint him under that section was only ceremonial.
- Article 132(2) of the Constitution applied to State or public officers, who were named in (b), (c), (d), (e) as well as those to whom the Constitution empowered the President to appoint or dismiss (f). The JSC commissioners were not such officers. The President could only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President had no ceremonial role in the appointment of elected and nominated commissioners of the JSC.
- As an act of assigning a position to an elected public official, then appointment in section 15 of the JS Act by the President of elected or nominated members of the JSC would offend article 171 of the Constitution. The two past elections of the representative of the Court of Appeal in 2013 and 2018 were conducted by the Independent Electoral and Boundaries Commission (IEBC), pursuant to article 88(4) of the Constitution, section 4 of the Independent Electoral and Boundaries Commission Act and later rule 3.1 of the Court of Appeal of Kenya Election Rule, 2013.
- Upon declaration of the 3rd respondent as duly elected representative of the court, the IEBC issued him with a certificate to confirm his election. That had been the practice with respect to elections of all members of the JSC under article 171(2)(b), (c), (d) and (f) of the Constitution. To complete the process, like in all cases where it conducted elections, the IEBC issued the elected member with a certificate of election and further published a gazette notice confirming the outcome of the elections of those members. That was followed by the taking of oath of office before the Chief Justice, in accordance with article 74 of the Constitution as read with section 40(1) of the JS Act before the members assumed the functions of the office of commissioner of the JSC.
- Traditionally as a practice carried over from the previous constitutional order, the President had always issued a gazette notice to signify the appointment of elected or nominated representatives in the JSC. With the new order, that role ought to be played by the IEBC but certainly not the President. Article 260 of the Constitution defined gazette as the Kenya gazette published by the authority of the National Government, or a supplement to the Kenya Gazette.
- Under article 171(2) of the Constitution, the scope of the President’s power to appoint members of the JSC was limited to two persons, a man and a woman, who were not lawyers, to represent the public. The Constitution did not require that the names of nominees, other than the representatives of the public, be submitted to the President for appointment. Contrary to that, section 15(2)(a) and (b) of the JS Act required nominating bodies to submit nominees’ names to the President for appointment as members of the JSC. To that extent, section 15(2)(a) and (b) was contrary to article 171(2)(b), (c), (d), (f) and (g) which insulated the process of appointment of nominated and elected members of the JSC and undergirded the independence of the Judiciary and JSC from manipulation by the Executive. There was nothing in article 131(a) or 132 of the Constitution to suggest that the President as the Head of State and Government could appoint elected members of the JSC.
- To give the President power to appoint or even to appoint by mere gazettement of names was to forget Kenya’s history and the mischief article 171 of the Constitution was intended to cure. In the result, and to the extent that section 15(2)(b) of the JS Act donated to the President the power to appoint elected and nominated members of the JSC, it was void for being inconsistent with article 171 of the Constitution which did not recognize such power. Section 15(2) went against the letter and spirit of articles 1(3) and 2(2) of the Constitution which stipulated that sovereign power delegated to State organs, must be exercised strictly in accordance with the Constitution and that no person could claim or exercise State authority except as authorised under the Constitution.