MEMBERSHIP TO THE JUDICIAL SERVICE COMMISSION (JSC): NATIONAL ASSEMBLY HAS NO MANDATE TO VET INSTITUTIONAL REPRESENTATIVES
Earlier today during his vetting by the National Assembly’s Committee on Justice and Legal Affairs, the Attorney General (AG) nominee, learned Justice Paul Kihara Kariuki appeared to suggest to the house committee that vide Article 250(2) as read with Article 248 all persons nominated for membership to the JSC have to be approved by the National Assembly and appointed by the President!
The good judge also refers to sections 10, 11 and 12 of the Court of Appeal (Organisation and Administration) Act (No. 8 of 2015), which with due respect has nothing to do with whether or not the Court of Appeal nominee to the JSC should be vetted by the National Assembly and subsequently appointed by the President. The sections simply provide for the Election of the Court’s President and representative to the Judicial Service Commission (JSC). It doesn’t require any such vetting!
As the learned Justice correctly points out, Article 248 sets out the various commissions to which Article 250 applies and these include the JSC at Sub-Article (2)(e).
However, as correctly pointed out by the Law Society of Kenya (LSK) in its protest against the purported intended vetting of the learned Justice Mohamed Abdullahi Warsame (who is the Court of Appeals nominee), the JSC is, by Article 248 (1) of the Constitution, exempted from the operation of Article 250 of the Constitution (although it falls in the list under Article 248(2)).
Article 248 is explicit on the exemption. It provides thus:
“248. (1) This Chapter applies to the commissions specified in clause (2) and the independent offices specified in clause (3), EXCEPT TO THE EXTENT THAT THIS CONSTITUTION PROVIDES OTHERWISE.”
The rider (in caps) seems to have skipped the attention of the learned AG-designate and the house committee while making their advertisements in the dailies calling for memoranda aimed at the vetting of the learned Warsame. The rider clearly recognises that there are instances under the law where Article 250(2) on house approval and presidential appointment don’t apply to some of the commission’s thereunder.
One such instance is as provided under Article 171 of the Constitution which establishes the JSC. The Article lists the membership under sub-Article (2) to consist of the Chief Justice (CJ) as its chairperson, one Supreme Court judge elected by the judges of the Supreme Court, one Court of Appeal judge elected by the judges of the Court of Appeal, one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates, the Attorney-General, two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates, one person nominated by the Public Service Commission (PSC) and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.
Of most importance to this discussion is sub-Article (2) (h) which demands that the “one woman and one man to represent the public” shall not be lawyers and shall be APPOINTED BY THE PRESIDENT WITH THE APPROVAL OF THE NATIONAL ASSEMBLY.
Were it intended by the drafters of the Constitution that all the members of the JSC were to be nominated and APPROVED (read to mean VETTED) by the National Assembly, NOTHING WOULD HAVE BEEN EASIER TO SAY. In fact the Constitution wouldn’t have made the express distinction as under sub-Article (2) (h).
The only logical, plausible and Legal conclusion is therefore that the other members of the JSC under sub-Article (2) (a), (b), (c), (d), (e), (f) and (g), that is, the Chief Justice, the Supreme Court judge, the Court of Appeal judge, the High Court judge, the magistrate, the AG, the two advocates (LSK representatives) and the one PSC representative are exempted from the requirements of vetting and or approval by the National Assembly.
I therefore agree further with the LSK that the exception expressed in Article 248(1) of the Constitution ousts the application of all of Chapter Fifteen including Article 250 which requires for such approval by the departmental committee.
The wisdom by the drafters to exempt the named membership must have been the intention to preserve the independence of the electing institutions including the Supreme Court judges, the organisation of the High Court Judges and the Magistracy, the PSC and the LSK.
The members of such institutions as the Judiciary and the LSK are deemed to have properly nominated and vetted their “representatives” to the JSC by going through their elections apart from the elections being an expression of the individual institution’s choice of their said representatives.
Such a vetting of such members would therefore not only fly against the face of the Constitution but would also amount to an interference with the independence of the said donor institutions.
The National Assembly has no lawful mandate to vet Justice Warsame or any other member of the JSC other than the 2 presidential appointees!