President Uhuru Kenyatta's refusal to swear in six judicial officers has put Chief Justice Martha Koome in a tricky position. In the uproar that followed, she was forced to issue a statement setting the record straight that the President needed to swear in the judges.
The statement was short and pro forma, devoid of drama. It clearly was not considered satisfactory or strong enough by radicals in the legal profession. To cover herself, she said she was not involved in the matter of the appointments and non-appointments, dropping that hot potato on the President’s lap. She got support from an unlikely quarter – Uasin Gishu Woman Rep Gladys Boss.
Others like former CJ Willy Mutunga were not mincing words, accusing the President of impunity and playing fast and loose with the Constitution. Once the Judicial Service Commission (JSC) had recommended the names, which was two years ago, the President had no choice but to appoint all of them, they said.
Here was the crux of the problem: was the President’s role merely to rubber-stamp, as constitutional purists insisted? Or did he have a duty to reject those whose integrity he considered questionable, as the Executive maintained?
All this could have been somehow resolved if the government had provided the critical information on the rejected judges to the JSC at the vetting stage.
But clearly, the authorities were not ready to do that. Reportedly the incriminating information was from the National Intelligence Service.
The non-disclosure presumably was because the President was not ready to share classified intelligence briefings with the JSC, which ordinarily conducts its interviews in public.
I don't suppose the Attorney-General, who represents the Executive on the JSC, is made privy to classified intelligence, which traditionally is for the eyes of the President only.
But couldn't a redacted summary of the relevant NIS briefs have been made to the JSC? Perhaps in camera? Or it wouldn't have mattered?
Former JSC vice-chair Mercy Deche has said the process, where it has reached now, has no "reverse gear", meaning the action of the President to throw back the names to the JSC is of no effect once the commission made its picks.
According to her, the only solution is to first appoint the six judges, then file formal petitions to the JSC seeking their removal.
It's cumbersome, but the question would still remain: would the Executive be willing to release the adverse NIS details it refused to disclose in the first instance?
She said that the original list of rejectees was different from the latest one and that some names had been substituted.
The implication was that there was more than met the eye in the President's action than the stated concerns of integrity.
Indeed, two of the nixed judges were part of the High Court panel that recently declared the BBI null and void.
Vocal members of the Law Society of Kenya had demanded that the 34 judges the President agreed to appoint boycott their swearing-in in solidarity with the spurned six – as a matter of principle.
Appoint all or none, they argued.
But the 34 did not think they should boycott. They arrived at State House in good time, enrobed and ready for the ceremony.
Evidently, the Executive wanted to avoid a court order blocking the ceremony.
County governments have also been adept at playing hide-and-seek with the courts to forestall unwanted injunctions, as the recent hasty swearing-in of the Wajir County deputy governor to replace the impeached governor indicated.
Unquestionably, the government has extended a hand of goodwill to CJ Koome.
Despite the complaints, the appointment of the 34 judges so soon after her elevation to become CJ was a pointer to that goodwill.
Koome, like other applicants who were interviewed by the JSC for the job, had spoken about the need for engaging the Executive – as opposed to grandstanding – when asked how she would handle the two-year impasse over the non-appointed judges.
One of the applicants even suggested, half in jest, that she would seek out the First Lady to find out exactly where the problem with the President lay regarding the deadlocked judicial appointments.
Negotiations presuppose compromise. Some give-and-take. However, the CJ was firm and explicit in the statement she released when the 34 judges were sworn in that no such negotiations between her and State House took place.
Would the Executive consider giving her an idea of the NIS report it kept to itself, at least so as to enable her make her own judgement?
Presumably, they trust her more than her two predecessors.
The President's Madaraka Day speech exposed the depth of the antipathy the Executive feels towards the Judiciary. This inter-departmental war is not healthy. Justice Koome has a tough job to cool it down. She has already given hints that she believes diplomacy will serve her cause better than histrionics.
