In fact, the early writings of eminent thinkers such as John Locke in his seminal work ‘Treatise of Government’ and newfangled writers like Donald Lutz in his work ‘Towards a Theory of Constitutional Amendment’, support the notion that if a population rested on popular consent, then the people can also revise, amend or replace it with a new one, equally on the basis of popular consent. This popular consent may be practiced through a convention, referendum or legislative process of a relatively bigger majority.
Mr. Speaker, while I was very excited and enthused by the level of debate directed towards this constitutional amendment, I was also discouraged by the level of misdirection of this august House by some Hon. Members who, at all cost, were desirous to discredit the fact that the appointment of the Chief Justice and Deputy Chief Justice through an interview process has no precedence. Hon. Gonese, in the last paragraph of his submission, wanted to enjoin Kenya as one such jurisdiction that subjects prospective candidates to the office of the Chief Justice to public interviews. Section 166 (1) of the Kenyan Constitution is relevant and clearly provides that:
‘The President shall appoint –
(a) The Chief Justice and Deputy Chief Justice in accordance with the recommendation of the JSC, and subject to the approval of the Ntional Assembly’. There are no public interviews; and
‘(b) All other judges in accordance with the recommendation of the JSC’. There are no interviews.
So, that was misdirection by Hon. Gonese.
Surely, with the much touted Kenyan example having been used by the Hon. Members as a shining example of a jurisdiction that appoints its judicial officers through an interview process, and has now been discredited as an outright lie and misdirection of Hon. Members, we stick out as the only country which unprecedentedly appoints its Chief Justice and Deputy Chief Justice through a public interview process.
Mr. Speaker, allow me to also address the unwarranted fears that the Hon. Members appear to have been harbouring throughout the debate. The unwarranted fear that the appointment of the Chief Justice, Deputy Chief Justice and President of the High Court shall erode the independence of the judiciary and unsettle the separation of powers as was expressed by Hon. Ndebele, Chirisa and Hon. Misihairabwi-Mushonga. On this concern, it should be noted that judicial independence is a function of a number of inter-related elements other than the procedure of appointment alone, which procedure has not been done away with in the appointment of the whole bench, the rest of the judges still have to go through a process of interviews as in the current Constitution, but just three of the members of the judiciary, by virtue of it being a means of curing an administrative mischief that may potentially occur.
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