Order for CJ Koome to swear-in judges contrary to the tenets of separation of powers » Capital News

By Oscar Kambona Saitoti

Governance in Kenya’s pre-2010 dispensation was largely associated with the unbounded exercise of State power by the President. The need to tame presidential patrimonial exercise of power during that era became the rallying cry that informed the quest for a new constitutional order.

In this regard, there was heated debate during the Constitution making process as to the appropriate system of government between parliamentary, semi-presidential and presidential system of government that would fit the circumstances of the Kenyan context.

While Kenyans wanted their Head of State and Government tamed, they also insisted that they needed to elect the person to exercise ultimate public power within the polity. This led to the adoption of what is commonly referred to as a “pure” presidential system of government.

An interrogation of the animating idea informing the exercise of presidential powers in the 2010 Constitution is that the President was given powers, but other bodies were provided with countervailing powers to exercise oversight over the President’s exercise of authority.

Chapter 9 of the Constitution that establishes the institution of the Presidency provides for a clear mechanism to hold the President to account for failure to discharge his or her constitutional obligations. Article 145 of the Constitution expressly vests the Legislature with the tool of removal of the President by impeachment whenever the President is found to have grossly violated the Constitution or any other law.

Given this expressly provided procedure to cure any violations of the Constitution by the President, courts should not create other avenues to deal with instances of alleged violation of constitutional obligations by the President. It is a canon of constitutional interpretation that where there is an express constitutional method to deal with an issue, courts should not bypass that process and go outside the four corners of the Constitution to create a new method of addressing the same problem.

Contrary to this established practice in constitutional interpretation, the High Court of Kenya has purported to bypass the scheme of holding the President to account for violating his constitutional obligations. In the ongoing row over President Uhuru Kenyatta’s decision not to appoint six judges recommended for appointment to the Court of Appeal and the Environment and Land Court, the High Court has usurped the President’s power to appoint judges and handed over this power to the Chief Justice. The High Court has allocated itself the unfortunate call to force the Chief Justice to violate the Constitution that she is sworn to protect and uphold. This is contrary to the tenets of separation of powers that animate the 2010 Constitution.

The correct approach that is anticipated in the Constitution is for the High Court to make a declaration that the President has breached his constitutional obligations and let the Legislature pick up the mantle of holding the President to account under Article 145 of the Constitution. Such an approach regulates and constrains the President’s powers of appointment within the confines of the text of the Constitution.

In bypassing this constitutionally provided scheme, the High Court stymies the development of Parliament’s oversight mandate and unnecessarily usurps the President’s constitutional mandate by handing the appointment role to the Chief Justice thus violating the doctrine of separation of powers.

The High Court of Kenya could have borrowed good practice in this regard from Benin which has been one of the model African constitutional democracies. On 2nd October 2000, the Constitutional Court of Benin adjudicated a dispute similar to the judge’s appointment imbroglio in Kenya in case DCC 00-054(2 October 2000) and held that where the President is vested with the power of appointment of judges, an expressed account by the President is required to confirm the appointment of a judge and silence on a President’s part cannot constitute approval to appoint, as such an appointment would be a violation of the Constitution.

The High Court of Kenya ought to have adopted such a prudential approach to constitutional interpretation and avoided the unnecessary pitting of the President against the Chief Justice as it did by asking the Chief Justice to usurp the President’s powers. Courts engaging in constitutional adjudication must avoid what has been denounced by Kate O’Regan, a former Judge of the Constitutional Court of South Africa as the “jurisprudence of exasperation”.

The counsel is that while courts might be legitimately frustrated with a state of affairs, the courts must be patient and embrace a “jurisprudence of accountability” that respects the separation of powers and allows other institutions of accountability like the legislature to exercise their oversight mandate.