On January 28 2011 the president made appointments to the following offices:
- chief justice;
- attorney general; and
- director of public prosecutions.
The appointments were made so as to satisfy the requirements of the Constitution of Kenya 2010 which came into effect on August 23 2010. Under the Constitution, the then serving chief justice and attorney general were required to vacate office within six months and 12 months respectively from the date of the coming into effect of the Constitution. Further, the Office of the Attorney General under the previous Constitution was divided into two: the Office of the Attorney General and the Office of the Director of Public Prosecutions.
As soon as the president announced the appointments, the prime minister denounced them, contending that he had not been consulted by the president before the appointments were made. This lack of consultation, he contended, amounted to a blatant violation of the 2010 Constitution and the National Accord and Reconciliation Act 2008.
Section 156 of the Constitution grants the president power to nominate the attorney general and, subject to approval of the National Assembly, to appoint such nominee.
Section 157 also grants the president the power to nominate the director of public prosecutions and, subject to approval of the National Assembly, to appoint such nominee.
Section 166(1) states that the chief justice is to be appointed by the president, on the recommendation of the Judicial Service Commission and on the approval of the National Assembly.
Section 29 of the sixth schedule of the Constitution provides that:
"... unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly."
On the basis of these provisions, particularly Section 29 of the sixth schedule, it would appear that the president had no power to appoint persons to the above-mentioned offices without consulting the prime minister.
In response to the prime minister, the president contended that he had indeed consulted the prime minister, but that no agreement had been reached during these consultations. This sparked a vicious public debate and split the country down the middle. Supporters of the president's appointments argued that the Constitution required the president merely to consult the prime minister and not necessary to secure his agreement.
As the debate raged on, the then-chief justice (who has since retired in accordance with the Constitution) publicly denounced the president's appointments. This was followed in quick succession by denouncements from, among others, the attorney general, the minister for justice, national cohesion and constitutional affairs, the Committee on the Implementation of the Constitution and the Judicial Service Commission. Indeed, when the dispute eventually went to court, the attorney general, far from supporting the president's position, actually opposed the president's appointments.
At the same time, the speaker of the National Assembly delivered a ruling in the National Assembly castigating the president for not consulting the prime minister before making the appointments.
Groups opposed to the president's appointments also held street protests.
Amid growing public tension, the president called a press conference and revoked the appointments. He then directed the Judicial Service Commission and the Public Service Commission to commence the process of recruiting the chief justice and the director of public prosecution, respectively. Further, the president stated that he would hold consultations with the prime minister with a view to reaching an agreement on the appointment of the attorney general.
The move by the president to revoke the appointments was immediately welcomed by the prime minister, thereby relieving the public tension. Later, the president and the prime minister met to begin consultations on the appointment of the attorney general. On its part, the Judicial Service Commission has since advertised for the position of the chief justice in local newspapers and on the judiciary's official website.(1)
It is hoped that the process of making the new appointments will be consultative, accountable and transparent, and as such will be acceptable to the country.
For further information on this topic please contact Grishon Ng'ang'a Thuo at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).
(1) The website can be accessed at www.judiciary.go.ke.