Here is the reason why in the appointment of judges, the President exercises Constitutional authority under Article 166. He is not merely a rubber stamp to endorse the choice of the Judicial Service Commission: 1. The office of a judge (whether of the Supreme Court, Court of Appeal or High Court) is a significant Constitutional office. It is an integral component within the matrix of constitutional checks and balances. The appointment of the CJ and his deputy is subjected to checks and balances. Parliament has to approve this appointment. Can it be argued that the offices of CJ and his deputy are the only significant offices in the Judiciary that require the checks and balances? Can it be argued that the office of a Supreme Court judge, who in other jurisdictions are subjected Parliamentary approval, is too small to be the bother of the constitutional machinery in Kenya? No. The office of the CJ is subjected to higher checks. Parliament and President. The office of every other judge is subjected to one check: executive check. That is the only way you can constructively interpret Article 166. 2. The Judicial Service Commission has the Constitutional mandate to appoint people to many other offices, including the Chief Registrar of the judiciary, other registrars, magistrates and court staff. None of these appointments is subjected to the involvement of the president. The appointment of the Chief Registrar of the Judiciary, for example, takes effect immediately it is ratified by the JSC. No intervention by any other office. Contrast that with the office of judges. If the Constitution intended no active authoritative role by the President, it would not have been necessary to stipulate that the appointment be done by the President. The situation would have been similar to that of the office of the Chief Registrar of the Judiciary. Direct injection! As it is, the President has a role. And a ceremonial role is no role at all. 3. Article 166(2): Each judge of a superior court shall be appointed from persons who..... The law sets clear qualifications, including moral and ethical probity, etc. Under Article 166(1) the role of the JSC is to recommend. The role of the President is to appoint. Article 166(2) doesnt say Each judge shall be recommended from persons who.... it says shall be appointed. As such, it is the role of the appointing authority to ascertain whether the recommending authority took into account matters set out under Article 166(2). You cant take it away from the President!
Posted on: Fri, 11 Jul 2014 08:47:15 +0000
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