The National Assembly has no mandate in the vetting and approval of judges and advocates elected or nominated members to the Judicial Service Commission (JSC), Supreme Court has ruled.
In a judgement rendered by a four-judge bench of the Apex court on Friday, March 31, 2023, held that only those commissioners of the JSC upon whom there is a constitutional obligation for vetting before appointment have to be approved by Parliament.
"There is 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 Supreme Court judges Mohamed Ibrahim, Smokin Wanjala, Isaac Lenaola and William Ouko ruled.
In their decision, the Judges also ruled that the president has no power to appoint the judges and advocates nominated and elected to serve in the JSC.
They said the president's duty is simply to appoint an elected commissioner within three days of submission of the nominee's name.
One of the noble tasks given to the president is to make state and public appointments, even where he has no other role to play in the process of appointment, the judges said in an appeal lodged by LSK that challenged the appointment of Justice Mohammed Warsame to the JSC before undergoing vetting by MPs.
"To the extent that Section 15(2)(b) of the JSC Act donates to the President the power to appoint elected and nominated members of the JSC, it is void for being inconsistent with Article 171 of the Constitution which does not recognize such power," the court ruled.
"Section 15(2) goes against the letter and spirit of Articles 1(3) and 2(2) which stipulate 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 authorised under the Constitution," they added.
The judges further held that allowing the president to appoint JSC nominees and having the National Assembly approve the same would interfere with the independence of the Judiciary and that of the JSC.
"We reiterate, that under Article 171(2) the scope of the President’s power to appoint members of the JSC is limited to two persons, a man and a woman, who are not lawyers, to represent the public. The Constitution does not require that the names of nominees, other than the representatives of the public, be submitted to the president for appointment," the four judges ruled.
"To that extent, Section 15(2)(a) and (b) is contrary to Article 171(2)(b), (c), (d), (f) and (g) which insulates the process of appointment of nominated and elected members of the JSC and undergirds the independence of the Judiciary and JSC from manipulation by the Executive. There is nothing in Article 131(a) or 132 of the Constitution to suggest that the President as the Head of State and Government can appoint elected members of the JSC."
However, Justice Njoki Ndun'gu who was also on the bench that heard the case by LSK differed with four of her colleagues that JSC has the final say in the appointment of judges and advocates to serve in the commission.
In her dissenting opinion, Justice Njoki stated that there is a need for all members of Chapter 15 constitutional commissions, the JSC not excepted to therefore be subject to the approval process by the National Assembly.
"The reasons for which parliamentary approval for state officers (including all JSC Commissioners) is necessary is first, to check the President’s powers of appointment; secondly, to ensure that the members nominated to serve as state officers meet the integrity test under Chapter Six of the Constitution, and thirdly, to ensure strict compliance of the national values and principles of governance as stipulated in Article 10 and in compliance with Article 250(4) of the Constitution, and in particular, participation of the people, integrity, transparency and accountability," she ruled
According to Justice Njoki, after approval by Parliament, the president, in the exercise of the mandate given to him under Articles 132(4), 248 and 250(2) of the Constitution, has the power to appoint members of the Judicial Service Commission.
"The appointment of JSC Commissioners as State officers by the President is an executive function specifically and properly conferred on the President by Article 132(4) of the Constitution and Section 15(2) of the Judicial Service Act," she stated.
Justice Njoki added that for Judges such as Justice Warsame, the vetting ought to be appropriately tailored to ensure and safeguard the sanctity of decisional independence of such nominees in strict compliance with the provisions protecting the Judiciary in accordance with Article 160 of the Constitution.
She further urged Parliament to rethink the composition of the JSC as it may be more prudent to have retired Judges or Judicial officers as its members, instead of the current sitting members of the Judiciary, as this would dispose of the difficulty of dealing with the provisions of Article 160 in the approval process
The decision by the supreme court judges stemmed from a lawsuit by LSK which had approached the Supreme Court to determine whether Section 15(2) of the Judicial Service Act, 2011 is constitutional for giving the President extra-constitutional powers to appoint members of the JSC.
Through lawyer Dudley Ochiel, LSK had argued that the Act requires the names of six JSC members nominated by the Supreme Court, Court of Appeal, Kenya Judges and Magistrates Association and LSK to be submitted to the president for appointment.
"The section is unconstitutional both in its purpose (for unduly giving the President more power than Article 171(2) allows him) and in effect (for permitting unlawful interference with the independence of the JSC)," Ochiel says.
But the Supreme Court has upheld the Court of Appeal decision rendered in October 2019 that declined to declare the section of the Act unconstitutional as sought by LSK.
The dispute first arose from retired President Uhuru Kenyatta's failure to appoint Justice Warsame as the representative of appellate judges on JSC, leading to a protracted court battle that ended in January 2019 with the judge assuming his role on the commission without a formal appointment by the President.
Justice Warsame had been duly elected to the JSC by his colleagues in the appellate court on March 9, 2018. His name was promptly forwarded to the president for appointment.
But former President Uhuru Kenyatta instead forwarded the name to the National Assembly for vetting. Justice Warsame later assumed office through court orders following the President's failure to appoint him three years down the line.
The president's refusal to appoint the judge triggered litigation on the validity of section 15(2) of the Act.