A Jubilee take-over of the Judicial Service Commission (JSC) or a constitutional amendment to scrap the Supreme Court. These are the main options legal analysts say are at President Uhuru Kenyatta’s disposal in his avowed pledge to “fix” the Supreme Court if he wins the October 17 repeat polls.
While some believe the President was not serious when he pledged to deal with the court, others say Jubilee must urgently have this court under its thumb if it wants to perpetuate its stay in power — especially if Uhuru is re-elected on October 17 and is pushing for a successor within his party.
However, the relatively “young” age of some judges — some can serve for 20 years before they are compelled to retire at the age of 75 — means they could be in the bench for a long time.
“The constitutional amendment route is a long shot. They are settling on disbandment of JSC and to replace it with a compliant one which can process favourable petitions against individual judges. It’s an open secret,” former Law Society of Kenya CEO Apollo Mboya says.
Mboya believes the JSC as presently constituted cannot possibly guarantee a favourable result for the Jubilee administration because it does not control it. Chief Justice David Maraga is the chairman and one of the judges who invalidated the presidential results alongside him, Philomena Mwilu. The two represents the Supreme Court in the JSC.
Other members include Court of Appeal Judge Mohamed Warsame, High Court Judge Aggrey Muchelule, LSK representatives Tom Ojienda and Mercy Ndeche, Attorney General Githu Muigai, Chief Magistrate Emily Ominde, Public Service Commission (PSC) Chair Margaret Kobia and President Kenyatta’s selected commissioner Kipng’etich arap Korir.
“You need to look at the revised Parliamentary and Privileges Act, 2017 assented to on July 21, published on August 3 and which commenced on August 16. Parliament is now essentially a secret society complete with expanded immunities and privileges. It’s like they anticipated these things,” Mboya adds.
Still, Jubilee will have to meet the requirements of Article 168 on removal of judges of a superior court. They can only be removed on five grounds — inability to perform their functions through mental or physical incapacity, breach of code of conduct, bankruptcy, incompetence or gross misconduct.
Once JSC is satisfied that any of the grounds hold, it can recommend to the President the formation of a tribunal to probe individual judges. If the CJ is facing this panel, the tribunal will have to be chaired by Speaker of National Assembly Justin Muturi.
“He really doesn’t have a choice other than to infiltrate the JSC for future appointments or trigger disciplinary action against current judges,” lawyer Nelson Havi agrees.
Havi introduced another “fixing” dimension said to be in consideration of legal minds within Jubilee. This includes the amendment of relevant laws, including the Constitution, to re-introduce security of tenure for judges in the form of contracts.
“That was the regime during his father’s time, contracts in form of security of tenure. There’s also the possibility of removing the court altogether. It would certainly defeat the purpose for which it was born, but with numbers, one can do bizarre things,” he observes.
Still, Havi says, there is the possibility of Jubilee using the state machinery at its disposal to frustrate individual judges into resigning.
Addressing supporters in Burma market, Nairobi, on the day the court delivered the judgment, Uhuru reminded Maraga that he was the man in charge: “The good thing about law is that before this (Supreme Court decision), I was president-elect. Now that Maraga and his gang have invalidated my election, I am no longer president-elect. I am now a sitting President. I don’t know whether you understand me. Maraga should now know that he’s dealing with a sitting President,” he said.
Another option under consideration is the denial of both JSC and Supreme Court the necessary quorum whenever vacancies fall. A number of judges are expected to exit the court in a matter of years, among them the CJ.
Already, JSC is lacking one member following resignation of Commissioner Winnie Guchu who moved to take up a political role at Jubilee headquarters. President Kenyatta is supposed to nominate her replacement.
But constitutional scholar Yash Ghai says Uhuru cannot do anything legally to “fix” the court. The President’s powers in judicial appointments or processes are nominal and neither does the Constitution allow him to act outside the law.
“He cannot do anything outside the law. Were he to do so, there are ample remedies under the Constitution. If he does use force, his action would amount to a breach of the law and he would be liable to impeachment,” Prof Ghai said.
If the National Assembly were to save him on impeachment, he said, one could say that there is no rule of law and the Constitution has collapsed.