Now that there is a new government in place, and with the anticipated appointment of State officers at various levels, it is time to recall the admonition of the High Court in the Mumo Matemu decision.
In September last year, the High Court annulled the appointment of Mr Matemu as the chairperson of the Ethics and Anti-Corruption Commission. To date, that office is yet to be filled.
In a constitutional petition filed by the Trusted Society of Human Rights Alliance, the court castigated Parliament and the Executive for failing to conduct proper inquiry into Mr Matemu’s integrity as required by Chapter Six of the Constitution.
This decision is crucial, and sets the test that both the Executive and the Legislature must pass in the appointment of State officers such as Cabinet Secretaries, Principal Secretaries, heads of State corporations, ambassadors and others.
Why is the Matemu decision instructive to President Uhuru Kenyatta, Parliament and other players in the appointing process?
It is instructive as it pronounced the rational test that appointing authorities must satisfy. While noting that the appointing authorities have wide discretion to choose whoever they wish, the court emphasised that constitutional requirements must be fully met.
These requirements are two-fold: procedural and substantive. Procedurally, the selection process set out in law must be followed. Second, the substantive demands of the Constitution must be met. These demands are set out in Chapter Six on Leadership and Integrity as well as Article 10 on National Values and Principles of Governance.
What does the letter and spirit of the Constitution demand of the Executive and Parliament? First, the court observed, as players in appointment and approval processes, they have the duty to conduct a proper inquiry into the “integrity, competence and suitability” of a candidate. It is not enough to only fulfil the procedural mechanics while ignoring substance. To do so, the court added, would be to “empty the Constitution of its meaning and intent”.
Second, and most interestingly, the court observed that since the Director or Public Prosecutions bears responsibility for criminal prosecutions, he is instrumental in the vetting of public officials.
It noted that since the DPP’s is a public office to be exercised in public interest, the director “bore responsibility to properly inform the appointing authorities about the investigations facing [an appointee]”.
It would logically follow from this statement that all other public bodies or officers such as the police, the Attorney-General, and others who may be privy to certain adverse information about candidates to public offices would be obliged to divulge that information to the appointing authorities.
Third, this decision is a resounding vote for public interest litigation. Addressing the Attorney-General’s and Mr Matemu’s challenge to the petitioner’s right to file the petition, the court ruled that the petitioner had the right since it was a non-governmental organisation tasked with promoting human rights and constitutionalism.
It emphasised that as a matter of public interest, the petitioner had the right to bring the case even if it was not directly affected.
This affirmation inspires confidence that the doors of the courts are open to any public-spirited individual or organisation, particularly where the spirit and letter of the Constitution has been violated or is facing threats of violation.
Finally, and perhaps most importantly, this decision sends a clear message that the Judiciary can no longer be viewed as “the third and weakest” arm of government. As a co-equal arm of government, it will not hesitate to intervene and nullify appointments made in disregard of the Constitution and the law.
For President Uhuru Kenyatta and Deputy President Ruto, religious compliance with the demands of the Constitution, however politically inexpedient, is crucial.Each mistake on their part will certainly add to the scorecard of their many political doubters.
Mr Kibet is a lecturer at Riara Law School (firstname.lastname@example.org)