The latest attacks on the Judiciary have been triggered by, and are a response to, the recent public statements that the Chief Justice has issued, the first that questioned the constitutional validity of Executive Order No. 1 of 2020, through which President Uhuru Kenyatta announced a structure of government that was open to an interpretation of the existence of a hierarchical relationship in the government that purported to make the Judiciary and the Judicial Service Commission, among other independent bodies, subservient to the executive. The second public statement by the Chief Justice dwelt on a number of public issues including the one-year delay by the President to appoint 41 judges selected by the Judicial Service Commission, concern about the continuing disobedience of court orders by the government, including a High Court order compelling the President to appoint the 41 judges. The Chief Justice also revealed a deterioration in the relations between the President and the Judiciary, resulting in a complete breakdown in the channels of dialogue.
The Attorney General, Paul Kariuki, responded with a statement attacking the Chief Justice. There has also been a petition seeking the removal of the Chief Justice from office, against whom anonymous attacks have also surfaced on social media and on posters erected on public highways. None of these forms of attack is new: after President Kenyatta publicly promised to “revisit” the Judiciary after the Supreme Court annulled his reelection in 2017, the Judiciary came under very similar attacks.
On 10th February 2020, the KHRC wrote a letter to President Kenyatta urging him to take active steps to make the outstanding appointments relating to 41 judges as directed by the High Court. The letter emphasized the finding of the High Court that the delay in appointing 41 judges was unconstitutional and urged that to avoid further offending the Constitution, the President should make the appointments without further delay.
The letter noted that the vetting of candidates for appointment as judges is the responsibility of the Judicial Service Commission and that any role for the security and intelligence agencies is as agents of the JSC. As agents, the security organs cannot carry out a vetting process outside that which the JSC requests or authorizes. In these circumstances, it is difficult to understand how the President could have derived background information on the candidates outside the framework that the JSC had put in place.
The dangers of a vetting process outside the purview of the JSC have immediately become clear because the investigative agencies which cleared the candidates for appointment, while acting for the JSC, subsequently came to a different conclusion when the Executive branch asked them to investigate the same candidates. Without multiple vetting processes, such conflicting investigative findings, the resolution of which lacks a mechanism, would have been avoided.
The letter further noted that since any concerns on the part of the President affected only a few judges, holding up the entire list subjected the judges to needless suspicion and that the only way to address this would be to make public the full details concerning the basis for any objections against the appointment of any of the judges.
The KHRC is concerned that, in addition to the well-founded concerns about a lack of political leadership that has resulted in a breakdown in the process of appointing the next batch of judges, attacks on the Judiciary will only worsen the situation, making it more difficult for the judiciary to operate at an optimal level. Since the Judiciary does not belong to or serve an individual, the ongoing disagreements do not hurt any of the individuals involved but the public that both the government and the Judiciary are expected to serve.
In all this, the personal position of the Attorney General, Paul Kariuki, is extremely troubling. As a member of the Judicial Service Commission, the Attorney General participated in proposing the judges whose appointment is the subject of the objection by the President, with the support of the Attorney General. The ability of the Attorney General to run with the hares and hunt with the hounds is a staggering lack of principle on his part and raises legitimate questions about the character of the government he serves in. Rather than provide leadership that would resolve the ongoing crisis, the Attorney General has compounded matters with an appeal against a court decision compelling the President to appoint the judges. The personal role of the Attorney General in the current breakdown requires further examination because he is an active enabler of the constitutional breakdown that the President is promoting.
The KHRC reiterates that request contained in its letter to the President and makes the point that if for any reason, the President is unable to make the appointment, he must convene a meeting with both the JSC and the Law Society of Kenya, through which he will explain and justify his position.
This level of attack on the Judiciary is an unfortunate feature of the Jubilee government. The vilification of the Judiciary affects public confidence in the institution and directly undermines the role that the Judiciary is established to play. President Kenyatta must choose whether he would like to be remembered as the president during whose reign the Judiciary was destroyed.
Nairobi 15th June 2020
The Kenya Human Rights Commission.