“You
always had the people and now have the government on your side, so that the
prospect is as favorable as could be wished. At the same time it must be
admitted you have much trouble and difficulty to encounter”. - James
Monroe’s writing to Thomas Jefferson on the eve of Jefferson’s inauguration as
president.
Struggles over power, appointments, and
executive privilege can result in constitutional showdowns the most bizarre, until now, being president
Kenyatta’s appointment of a tribunal to investigate members of the JSC based on
a report of the National Assembly which, even though gagged by a court order,
found JSC to have acted unconstitutionally in removing the Chief Registrar of
the Judiciary from office. The JSC, armed with court order against the tribunal
then proceeded, interviewed and recommended 25 names to the president for
appointment as Judges of the High Court. The President did not immediately
appoint the nominees, perhaps because to do so would have been a very public
acceptance that JSC had won the inter-institutional battle for power and
supremacy.
On 27th June 2014, the President finally acted. He appointed 11 Judges
out of the list of 25 that was forwarded to him by the JSC. This mere act, appears
to be a climb down by the president, an acquiescence to JSC’s claim to
authority to dismiss the Chief Registrar of the Judiciary. The fact remains that the president seems to
dislike and distrust not only the JSC as currently constituted but also Judges
whom he has had no say in their appointments.
Courts derive strength from their words but
their words are no match for what the President has: the votes and in what might turn into yet another constitutional showdown, between the president
and the judiciary, the Law Society of Kenya is moving to Court, it says, to
challenge the president’s decision as unconstitutional on grounds that the president’s
role in the appointment of judges is allegedly “ceremonial and he cannot
purport to approve or disapprove names of those recommended for appointment by
the JSC”.
It appears the president has decided the time has
come to draw a line and make it known to the judicial branch that that is what he is doing. Mere assertions
of executive authority, without visible action, he must have concluded, would
be irremediably corrosive of his presidential prerogative to approve or
disapprove recommendations from the JSC.
A noted academic professor Yash Pal
Ghai’s has posed the question, in The
Standard Newspaper issue of Monday, June 30, 2014, “is the President aware
of Kenya’s Constitution under which he was elected and now governs the
country?” He further writes, even as he correctly rules out any chance of
impeachment, that: “the president has absolutely no discretion. The JSC makes “recommendations
and the president appoints”.
The president obviously disagrees. None but him alone has the
constitutional prerogative to appoint judges. Article 166 (1b) of the constitution
states the president shall appoint Judges, with the exception of the Chief
Justice and the Deputy Chief Justice, in accordance with the recommendation of
the JSC and Article 166 (2) outlines the criteria to be used for appointment. Much
has been made of use of the word shall. My view is that ‘shall’ only applies to
the extent that the president when he appoints a judge cannot seek
recommendation from any other quarter; say from the first lady or the first
mother or the office of the attorney general, but only from the JSC. What would
happen for instance when he disapproves of recommendation to appoint a
particular nominee on grounds that the nominee, notwithstanding the
recommendation, does not meet any of the criteria set out in Article 166 (2). Should the president
carry on and appoint the nominee anyway. Does he have the ultimate
constitutional right, when exercising executive authority derived from the
people to prevent a train wreck.
Indeed during the
swearing in of the 11 appointed, the president noted that "It is important
to ensure that individuals appointed to advance the course of justice are
persons of integrity and adhere to our national values," further adding
that the Judiciary plays a major role in creating a suitable business
environment by ensuring that commercial disputes are settled expeditiously.
Clearly, he has a role to play.
President Kenyatta,
probably takes the view, what Theodore
Roosevelt called the Jackson-Lincoln theory of the presidency, that
occasionally situations arise which call for firm and vigorous action, and that
in such situations it is the duty of the president to act upon the theory that
he is the steward of the people, and that the proper attitude for him to take
is that he is bound to assume that he has the legal right to do whatever the
needs of the people demand as he sees them, unless the Constitution or the laws
explicitly forbid him to so act.
Indeed
Abraham Lincoln decision, for instance, to defy a habeas corpus
order issued by Chief Justice Taney during the opening days of the American
civil war was based on a particular view of presidential power to defy the
courts in situations of extreme crisis, where doing so is necessary to save
“all the laws but one”. This act of defiance of the courts by Lincoln created a
(nonjudicial) constitutional precedent that clarified constitutional lines and
is cited to this day by constitutional theorists with various views of
presidential and Judicial power.
Jefferson, just like Kenyatta today, disliked and
distrusted the ‘Federalist’ Judiciary he inherited from John Adams. In February
1803, chief justice Marshall issued the opinion of the US Supreme Court in the
case of Marbury V Madison, a
confrontation between one of the out-going President Adams’ midnight
appointees, William Marbury, and the Jefferson Administration. The decision,
which held that James Madison (himself a future president) had been wrong to
withhold a commission to Marbury, went against the president, but Marshall
wisely avoided a showdown while helping lay the foundations for the concept of
judicial review.
Constitutional showdowns have the benefit that
they clarify constitutional authority. Such clarification help in reducing
decision costs for the government and public in the future. The cost, however,
is that these showdowns may result in the interruption of governance; the
energy of government officials being diverted to the problem of asserting
authority.
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