The last two weeks of the court term are usually hectic hence my inability to post as much as I would like. Due to the dysfunctional nature of our practice, we now practice by way of Certificate of Urgency where the only way your matter can be heard or fixed for hearing is if you file an application under certificate of urgency.
Independent Commissions and salaries
The CIC pay saga has brought to the fore the role and cost of Commissions and Independent Offices established under the Constitution. In the context of the Kenyan Constitution, these independent bodies are a response to the imperial presidency, all powerful executive and the general distrust of politicians. They are sometimes referred to as fifth branch of government. The focus on salaries and costs alone I think is misplaced. This debate does not take into account the overall or aggregate benefits of these bodies. If we were so worried about the expense of these commissions, would we dissolve the CIC and let the politicians run the show. Or if we found the remuneration bill of the JSC on the higher side, would we let the President pick the judges himself.
I agree that the remuneration of Commissioners must be rationalised and I expect another Commission; the Salaries and Remuneration Commission, will look into these matters. It must also be accepted that the public service pay can never match that of the private sector. Public service does not require a vow of poverty but demands civic consciousness.
New Commissions and self preservation
One of the features of the Labour Court Bill, 2011 is that it tries to parachute the current judges into new positions without the necessity of some public examination and assurance that they meet the requirements and standards set by the Constitution. The Ombudsman Commission Bill, 2011, the Kenya National Human Rights Bill, 2011 and the National Gender Commission Bill, 2011 all have the same transitional provisions saving the current commissioners and entitling them to futher fixed terms.
A good case can be made for ensuring continuity of institutions but if our national agenda is that of renewal, of promotion of accountability, transparency, good governance and above all establishing a new constitutional order, isn't it proper that all incoming commissioners of these bodies be subjected to the same rigour and standards the Constitution demands. Such standards must not be confined to the judiciary.
Vetting Panels are the in thing!
High Court and Constituency Boundaries
The current impasse on constituency boundaries is the result the High Court granting an injunction restraining publication of the constituencies delineated by the now defunct Interim Independent Boundaries Commission. The 5th Schedule of the recently enacted Electoral and Boundaries Commission provides for the resolution of the issues arising from the first review. Section 4 of the schedule provides that a person may apply to the High Court for review of a decision of the Commission made under the Constitution or the Act. Article 89 of the Constitution is also to the same effect save that the period the court is expected to decide the matter under the Constitution is three month and not one month as provided in the Act.
Given the controversy surrounding the last review, the High Court will obviously be the final arbiter of Constituency Boundaries. Both the Constitution and the Act do not determine or prescribe the guidelines, remedies and procedure on how the court should exercise jurisdiction. The difficulties of this should not be underestimated. Let me give two examples.
The first concerns, the name of a constituency or ward. A group of constituents assert that the name of that constituency does not reflect the history of the area, or is negates the contribution of a section of the community. If the court agrees does it rename the constituency or refer the matter back to the Commission for consideration of another name.
The second concerns actual boundaries. Say a person from Lurambi Constituency complains about the boundary. There are no appeals regarding the neighboring constituencies. Obviously, interference with the Lurambi boundary would affect the neighboring constituencies like Shinyalu, Ikolomani, Mumias and Malava. In the event the case is made for interference the court will have several options in the case; redraw the boundaries itself or direct the Commission to act in accordance with its directive by redrawing the boundaries.
The Chief Justice, as the rule making authority, will require to promulgate rules for the purpose of operationalising these provisions as lawyers prepare to litigate.
Chief Justice, Supreme Court and litigation
It is not only in Kenya that the position of Chief Justice is under litigation. The reappointment of the South Africa Chief Justice, Sandile Ngcobo is under consideration by the Constitutional Court. In the meantime, the case challenging the appointment of the judges of the Supreme Court of Kenya has now commenced after the judges dismissed an application by the applicants seeking to have Justice Mwilu disqualify herself from the matter on account of her relationship with the Attorney General.