Two weeks ago, I received a phone call from the producer of the Jeff Koinange Live (JKL) talk show on Citizen TV. The 3pm call was an invitation to appear on the show that evening. Naturally, I said no. As a senior citizen, I am in that stay-at-home category. And in any case, even if I were to cede any ground, surely this was too abrupt. One would expect an invitation to appear on such a serious programmetocome with adequate notice. But the producer insisted, and she can push!So after several phone calls between us (I told her I needed to consult widely), I agreed to honour the invitation.
But there was something beyond the producer’s sweet tongue that made me agree to her request that Wednesday evening: The topic and the person I was going to debate. The issue at hand was the relationship between the Executive and the Judiciary, which at that time was hanging on the edge of a cliff. Was the president interfering with the Judiciary thereby not only grossly violating the constitution but also leaning dangerously toward taking the country back to the one-party dictatorship era? Was Uhuru Kenyatta becoming a dictator? And what better person to distill these issues than the president of the Law Society of Kenya (LSK)? Nelson Havi was just the man.
So you can imagine my disappointment when, throughout the one-hour show, we never quite got to discuss the issues despite them being so clear and despite Mr Havi having come out strongly in the recent past to condemn the president and defend the Chief Justice and the Judiciary. Unfortunately, he never seized the opportunity to canvass his position on the issues or at least allow for a conversation with Kenyans on a forum with a large following such as this one offered by Citizen TV. Instead, he turned to ad hominem attacks with Manyora as the subject. I was forced to sit in the studio and watch the LSK president run away from the issues, which as I have already pointed out were very clear. After all, they do say the law is very clear.
Was President Kenyatta in breach of the constitution for failing to appoint the 41 judges recommended to him by the Judicial Service Commission (JSC)? Was his role in the appointment of judges merely ceremonial? Was the Executive Order No.1 of 2020 a gross violation of the constitution? Did this amount to an affront to the doctrine of separation of powers? Was this a case of the Executive muzzling the Judiciary? Was the government killing the rule of law through disobedience of court orders? And were these issues weighty enough to warrant LSK’s debarring of the Attorney General and the Solicitor General? But above all, was LSK justified and, one might even argue, sane in pushing for the impeachment of the President of the Republic of Kenya? Was the Chief Justice right in the manner in which he addressed the president?
Havi lost an opportunity to address these issues, so allow me to address them in the way I would have if we had had the time.
On whether Article 166 is absolute in its provision and that the president has no say, I do not believe he needs to turn himself into a rubber stamp in the matter of judges appointments.The president has a role akin to that played by the National Assembly in vetting persons recommended by JSC for the positions of Chief Justice and Deputy Chief Justice. And because of this, the president’s ceremonial role in these appointments is quite clear. When it comes to judges, the president as the head of state cannot be reduced to a ceremonial hand in appointments.
While on this, the mandatory word “should” used in Article 166 could be interpreted to refer to the recommended list; meaning the president should not introduce names other than those recommended by JSC. And that leads us to whether the president should put his hand on all the names without dropping any. For what reason? This is also tied to the argument that the president has representation in the JSC that includes the Attorney General. Now, how if the AG’s reservations were buried in the collective decisions of JSC? Again, is it not possible for the president to receive damaging information on some of the appointees well after the JSC has sent the recommended names? And if yes, would it make sense to appoint such persons only for a tribunal to be formed immediately after their appointments?
Disobedience to the courts is something we should not entertain at all from all, including government. To do so is to slowly but swiftly slide into the Hobbesian state of nature where life is short, brutish and nasty..
Finally, while sticking to law and procedure, and despite the inordinate delay by the president in appointing the 41 judges, has any law been broken? Has he violated the constitution? Is there a specific timeframe within which he must appoint the judges? What about any considerations, including budgetary constraints,which could stand in the way of immediate appointment of these judges? Again, the LSK presidentsquandered the opportunity to address this contrary opinion and in the process aid the administration of justice in the country.
On whether Executive Order No.1 of 2020 violated the constitution as argued by some like Havi, I would have wanted to ask this: Did the president temper and tamper with the independence of the Judiciary? Could Havi point to one incident where through the Executive Order the president reassigned, restructured or reorganised the Judiciary?
Certainly, the president did not do any of this. And that leaves us with only the perception of interference to which the response would have been that the president as the head of state was giving us a glimpse of what government looks like. And in any case, the Judiciary and the Legislature must not only work independent of the Executive but there must also be respect between the three arms of government. The president would be right in showing how harmony between the three is achieved by bringing out government ministries and departments that create synergy, thereby allowing for smooth government operations.
Touching on the independence of the Judiciary and its relationship with the state, I wanted to engage the LSK president on whether the Judiciary’s independence is absolute. I wanted Havi to show me one modern state that has an independent Judiciary that is at par with the Executive. I wanted to ask if he knew how the state works. I would have loved to engage him on how even the appointment of judges in the world’s best democracies like the United States is a full-blown political process.
On the claim made that the government should stop disobeying court orders, I wanted to inform Kenyans that disobedience to the courts is something we should not entertain at all from all, including government. To do so is to slowly but swiftly slide into the Hobbesian state of nature where life is short, brutish and nasty. But I also wanted to find out from the LSK president if the courts have played a part in encouraging the Executive to disobey their orders. For instance, why would the same courts entertain the Executive even when it fails to obey their orders? Isn’t it said in the corridors of justice that he who comes into equity must come with clean hands? Why would the courts entertain government when government is in breach of court orders in the same matter such as we saw with the Teachers Service Commission versus the Kenya National Union of Teachers sometime back?
The courts have also in the pastbeen used to frustrate workers by always declaring their industrial action illegal. Added to this is the suspicion with which the courts are viewed when they issue certain orders, especially to political players. A case in point is the recent order issued to Moses Wetang’ula in the Ford-Kenya party dispute. Or the one issued to former Kiambu Governor Ferdinand Waititu before his impeachment. Or the orders given to the Governor of Kirinyaga County, Anne Waiguru.
In conclusion, LSK and the Judiciary have left those with a contrary opinion in a very difficult situation. First, there are those like me who shudder to imagine what would happen to them should they find themselves appearing before a judge. Secondly, and much more important, is the final hammer on the debate and indeed any litigation on the matter that arises out of the Chief Justice’s pronouncement. The CJ has been categorical on this matter, making it difficult if not impossible, for anyone to argue otherwise in any court of law in this country; not after the he has pronounced himself on the same. The LSK president had the perfect opportunity to allay these fears and show that it is still possible for the Judiciary to hear out those with contrary opinion – and to assuage the fears of those like me who hold an opinion contrary to that of Havi and even of the CJ.
I will not end without affirming my belief in the rule of law, the separation of powers, the independence of the Judiciary and the need to have the Executive operate within the constitution. I will,however, hasten to add that whenever there are differences between the Judiciary and the Executive–indeed such conflicts will always exist – the CJ should at all times, even when highly provoked, remember that he is the Chief Justice of the Republic of Kenya. His communication must always be reflective of the position he occupies. After all, the Supreme Court is our national shrine and the judges therein assumed to be beyond mere mortals.
