THE SEARCH FOR THE APROPPRIATE STANDARD OF SCRUTINY IN JUDICIAL

ENFORCEMENT OF THE LEADERSHIP AND INTEGRITY CHAPTER OF THE

CONSTITUTION

Walter Khobe Graduate Student, University of Pretoria

It is trite observation that in a constitutional democracy, the constitutional text means whatever

the courts say it means. Article 259 of the Constitution has set out the guiding principles when

interpreting the Constitution and applying its provisions. These principles include promoting the

Constitution’s purposes, values and promotion of good governance. This is an explicit

constitutional imprimatur that courts should focus on the substantive commitments of the

Constitution. To this extent, the Constitution has not left judges to their own jurisprudential

autonomy. Rather, in a ringing and decisive break with the past formalistic approach to

construing the Constitution, courts have been enjoined to uphold a particular conception of the

society which the Constitution through the interpretive indications has promised.

This promise is evident in the balance in favour of certain commitments, namely the

establishment of a society based on the foundational values of human rights, equality, freedom,

social justice and rule of law as stipulated in the preamble of the Constitution. In addition, the

national values and principles of governance embodied in article 10 of the Constitution reiterate

this conception. Taken together, these values and principles provide the foundation upon which

an egalitarian vision of the Kenyan society envisaged by the Constitution emerges. This supports

the contention that the leitmotif of our constitution is that of societal transformation.

Kenya’s Constitution has uniquely dedicated a whole chapter on leadership and integrity. The

enforceability and criteria of judicial scrutiny thereof has been subject of contestation in recent

debates. The legacy of appointments in Kenya is that of appointment based on cronyism and that

did not take merit into account. It is this past that the Constitution sought to cure by dedicating a

whole chapter to leadership and integrity. Thus one thing is clear; the Constitution is avowedly

transformative. It retains from the past only the good and defensible and turns its back firmly on

the rest. This implies that appointment and holding of position in the public office must comport

with the dictates of the Constitution and Courts must enforce the principles envisaged in this

chapter of the Constitution.

The leadership and integrity chapter contains a number of substantive commitments on

appointment into public office. Article 73(2) (a) of the Constitution provides that selection

should be based on personal integrity, competence and suitability, or election in free and fair

elections. These principles establish a normative framework for all government action and bind

all the arms of government. It is immediately clear this is no colourless statement that cannot be

enforced or that is aspirational. Rather one that cannot be detracted from thus any appointment

process that deviates from conforming to this vision of the Constitution must be struck down.

In Kenya Youth Parliament and 2 Others v Keriako Tobiko & Another, Constitution Petition 101

of 2011, the petitioners sought to challenge the appointment of the Director of Public

Prosecutions as they contended that the appointed individual did not meet the threshold of a high

moral character, integrity and impartiality envisaged in the Constitution. The court opined that

the petitioners had to show defects in the procedure and process of appointment. The court in its

decision opined that ‘[t]he organs of appointment arrived at decisions which the court cannot

undertake a merit review of’. The import of the Court’s decision is that the selection and

accommodation of substantive values is best left to other processes. The approach of the Court is

that courts should only deal with procedural fairness and at best ensure public participation in the

appointment processes.

It is contended here that the court’s approach is one favoured by lawyers schooled in

conservative legal discourse and does not cohere with a Constitution that demands a

revolutionary shift from our past positivisitic legal culture. This is based on the fact that a

Constitution which is unambiguously directed toward the achievement of openness and

democracy in government and freedom and equality for its citizens cannot countenance an

appointment process founded upon an endorsement based on the will of a transient majority in

parliament or the pressure of a powerful interest group, but rather on reason, openness and

justification in the decision-making processes. This is not to say that the court should engage in a

merit review of appointments but rather the argument is that the constitution demands a more

rigorous scrutiny that goes beyond mere ticking of check lists to inquire on whether procedural

stipulations have been adhered to.

The contentions here gain traction when comparative jurisprudence adopted on the appropriate

test of judicial scrutiny by other jurisdictions is juxtaposed against the High Court’s approach.

The South African Supreme Court of Appeal in Democratic Alliance versus The President of the

Republic of South Africa & 3 Others, Case No. 263 of (2011) ZA SCA 241 has taken the

approach that where there is evidence that an appointee does not meet the prescribed test of ‘fit

and proper person’ the court will interrogate whether the appointing authority undertook a

‘proper inquiry’ (para 121). This goes beyond mere assessment of whether procedural

stipulations were adhered to.

The Supreme Court of Pakistan in Mohammed Yasin v Federation of Pakistan through Secretary,

Establishment Division, Islamabad and Others, Constitutional petition No. 42 of 2011 adopted a

three pronged inquiry into appointment processes. The test include: whether an objective

selection procedure was prescribed; whether the selection procedure had a reasonable nexus with

the object of the whole exercise i.e. selection of the sort of candidate envisaged by the law and

whether the selection procedure was adopted and followed with rigour, objectivity, transparency

and diligence to ensure obedience to the law (para 36).The last limb of this test evince the court’s

inquiry into the rigour with which issues raised about candidates for public appointment were

pursued. This test thus goes beyond looking at procedural compliance.

The Indian Supreme Court in Centre for PIL and another versus Union of India and Another,

Petition No. 348 of 2010 has adopted an approach that judicial review of appointments must

scrutinize not only the appointment processes but also adherence to the eligibility criteria. Thus

while judicial review is not a merit review, where the appointing authorities do not adhere to the

eligibility criteria, then such an appointment is to be struck down (para 33).

In conclusion, the Courts must grasp the mettle and fashion a jurisprudence that comports with

the vision of the constitution. Judges must not lose sight of the historical juncture at which law

and society find themselves in Kenya as well as the Court’s key role in the transformation of the

society. Ultimately, our courts should unfailingly embrace the jurisprudence dictated by the

Constitution. When judges opt for judicial reasoning and methodology that may be at odds with

our developing constitutional jurisprudence, then this shields our governance process from the

beneficial impact of the Constitution. It is hoped that going forward courts will breathe life to

the dry bones of the leadership and integrity chapter of the Constitution by fashioning a test that

coheres with the Constitution’s dictates.