By LUKOYE ATWOLI
Sunday Nation 31 October 2010
During his confirmation hearing last Tuesday, former Law Society of Kenya chairman Ahmednassir Abdullahi questioned Parliament’s role in “vetting” him and other appointees to the Judicial Service Commission (JSC).
The lawyer argued that, having been elected by the LSK as provided for by the Constitution, no other authority had powers to purport to “vet” him before his appointment to the JSC.
The parliamentary committee that was tasked with this vetting process was taken aback, but the lawyers in its midst claimed to be acting on the authority of the people of Kenya to ensure that “the names before it are adequate”.
A committee member assured Mr Abdullahi that what they were doing was “perfectly legal, perfectly constitutional and perfectly within the procedures of the National Assembly”, further asserting that “the National Assembly has its rules on how Parliament approves the nominees”.
Herein lies the problem. A plain reading of Part 4 of the Constitution of Kenya reveals that the only role the National Assembly has in the appointment of members of the Judicial Service Commission is provided for in Article 171 (2) (h).
This section of the Constitution provides that two members of the public, a woman and a man, shall be appointed by the President “with the approval of the National Assembly”.
Parliament further has a role in the appointment of the Chief Justice and the Attorney General through separate mechanisms, and the two are members of the JSC by virtue of their positions.
Beyond these, the Constitution confers sole authority on the judges of the Supreme Court and the Court of Appeal, the association of judges and magistrates and the Law Society of Kenya to fill the remaining vacancies in the JSC under Article 171 (2).
The National Assembly therefore has no constitutional mandate to vet or otherwise interfere with the appointment of those members of the JSC elected by other bodies.
The framers of this section of the Constitution had very clear intentions of separation of the organs of state, restricting the National Assembly’s role to that of scrutinising and approving or rejecting appointments made by the President in order to ensure that the larger national interests were served.
It is important to raise this important point early in the implementation of this Constitution in order to prevent future attempts by the legislature to usurp the roles of other arms of government and the citizenry at large.
Purporting to “vet” individuals who are duly appointed to a constitutional commission amounts to overstepping its mandate, and reverting to the pre-promulgation stance where Parliament once sat as the authority that nominated, vetted and virtually appointed the members of key constitutional commissions.
Under the new Constitution, members of these commissions must owe allegiance only to the Constitution and to the people of Kenya collectively, and not to any single individual or institution.
The committee’s assertion that Mr Abdullahi was seeking a constitutional interpretation falls flat, given that he was only stating the clear provisions of the Constitution.
In any case, if the MPs insist on this course of action for the remaining members of the JSC, someone must quickly ask the Court of Appeal to perform the “interpretation” function of the Supreme Court as provided for in Section 21 of the sixth schedule.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine www.lukoyeatwoli.com