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If it matters to you, It matters to us! Contact us: [email protected]. Sign in Join. Sign in. Forgot your password? Create an account. Sign up. Was the appointment of the Interested Party Constitutional? A proper analysis and application of the constitutional standard we have set out above to the facts of this case must begin with the provisions of article 2 of the Constitution.
That article provides as follows: The President shall nominate and, with the approval of the National Assembly, appoint, and may dismiss — ….. In turn, section 6 of the Act stipulates as follows: 6 The President shall, within fourteen days of receipt of the names of successful applicants forwarded under subsection 5 g , select the chairperson and members of the Commission and forward the names of the persons so selected to the National Assembly for approval.
These two legal provisions provide the procedure which must be followed in the appointment of the Chairperson of the Commission. Importantly, the law gives a role to both the Executive and the Legislature in the appointment process. While the President nominates the Chairperson from among names in a list provided to him by a duly appointed Selections Panel, the Executive must have its own independent procedure for approving the nomination.
As we observed above, each of the two organs is obligated to follow its own established procedures in the appointment or approval process as well as ensure that the proposed appointee has satisfied the constitutional criterion. The petitioner argues that both the Executive and the Legislature failed in their constitutional duties in appointing the interested party to the post of Chairperson of the Commission.
As we understand it, the petitioner has raised two specific arguments to challenge the appointment. In the first place, the petitioner argues that while it is true that both the Executive and the Legislature technically followed each of the steps laid down in the law for appointment, the appointment process still fails the procedural test because both organs failed to consider vital information that was available to them about the interested party, information which, the petitioner argues, would have rationally led the two organs to the conclusion that the interested party was not proper and fit to be appointed to that office.
Secondly, the petitioner argues that the interested party is unsuitable simply because it is not possible to say, with any sense of reasonableness or rationality, that the interested party can meet the substantive requirements of chapter 6 of the Constitution and particularly article 73 2. That article provides that: 73 2 The guiding principles of leadership and integrity include— a selection on the basis of personal integrity, competence and suitability, or election in free and fair elections….
In particular, the petitioner doubts that the interested party would pass constitutional muster for the test of integrity and suitability to the office of Chairperson to the Commission. Hence, the theory of the case for the petitioner is that the appointment process of the interested party must be nullified because it fails the procedural propriety test.
We agree with the petitioner that the constitutional standard is not whether a proposed appointee has technically appeared before all the right committees in the chronological sequence stipulated by law. The procedure laid down by law is surely meant to serve a constitutional objective. In our view, it would be constitutional mockery to sanitize an appointment process merely on the ground that it went through the procedural hoops if, in fact, it turns out that the organs charged with the task of appointment were merely going through the procedural motions.
That would be to empty the Constitution of its meaning and intent when it bequeaths the appointment task to a government organ and lays down an appointment procedure which is aimed at fulfilling the constitutional objectives.
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In our view, a procedure cannot be deemed to have been legitimately and substantively satisfied if it appears from available evidence that the appointment process was designed and executed in such a way that no proper inquiry into pertinent issues related to the appointment which were known to the appointing authorities was conducted. To reiterate, we appraise the constitutional standard to be that a mere showing that the appointment process went through the technical procedures would not be sufficient to immunize it from constitutional challenge if it can be shown that the technical procedures could not rationally lead to a proper inquiry into the suitability of the proposed appointee to the State or Public Office in question.
In this case, the petitioner complains that no proper inquiry was conducted by either the Executive or the Legislature about the allegations of lack of integrity and unsuitability of the interested party to the position of Chairperson of the Commission. It is uncontested by all parties that these allegations were brought to the attention of the appointing authorities.
What the petitioner claims, however, is that the allegations were treated in a very cavalier manner by the Legislature — and not at all by the Executive. The interested party argued that the issue of his integrity and suitability was, in fact, extensively debated upon by the National Assembly on December 15, and again on December 20, and that in giving its approval, Parliament conclusively considered the allegations which form the basis of the instant case.
The interested party, therefore, argues that the allegations against him were considered by the appointing authorities.
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The specific allegations which the petitioner makes against the interested party and which the petitioner says needed to be resolved before the appointment of the interested party to any State or Public office are serious ones. At best, the petitioner says the interested party was, at least, criminally negligent in failing to exercise due diligence to prevent several incidences of fraud at AFC that resulted in the losses.
There are two specific instances involving a company known as the RVAC which the petitioner highlighted to demonstrate that the allegations are serious enough and plausible enough to warrant a proper inquiry. In the more straightforward claim, the petitioner alleges that the interested party was involved in approving a loan of Kshs.
However, a copy of the official search for that title reveals that no charge was ever registered against the title, raising suspicions about the integrity of the transaction. A second set of allegations the petitioner highlighted relate to an affidavit the interested party swore and had filed in a civil case involving RVAC. We do not have the full set of pleadings in the suit but we can glean from the pleadings annexed to the supporting affidavit of Elijah Sikona that at some point AFC became involved in the suit.
It did so by way of a chamber summons application which was supported by an affidavit of the interested party in his capacity as Chief Legal Officer of AFC. The petitioner, however, claims that these statements by the interested party, averred in a sworn affidavit, amount to perjury since he knew or must have had reason to know at the time that most of the loans advanced to RVAC had already been paid off.
The petitioner attached loan statements in support of its argument that the interested party committed perjury in swearing that affidavit; and that the perjury was in furtherance of a nefarious scheme aimed at facilitating the continued looting of funds from AFC. We are not in a position to make any findings whether these allegations are proved or not.
That will have to await appropriate legal proceedings tailored for that purpose. However, what we are prepared to hold at this point is that the allegations are serious enough and sufficiently plausible to warrant any reasonable person who is charged with the constitutional responsibility of assessing the integrity or suitability of the Interested Party for an appointment to a State or public office, especially one which is as sensitive as the Chairperson of the Ethics and Anti-Corruption Commission, to conduct a proper inquiry before such an appointment.
We say so on a cursory assessment of the evidence made available to us — which includes a letter by a Criminal Investigations Department CID Officer who wrote to the CID Director stating his opinion that there was substance in some of the allegations and urging the CID Headquarters to dedicate more resources — including experts in forensic science and auditing and computer analysis — to the case.
That letter was written on June 7, This information was presented to the Director of Public Prosecutions. It is also not clear whether the President and the Prime Minister, in picking the interested party out of the three names submitted to them, gave any consideration to this information. Hence, by the time the name of the interested party was sent to Parliament officially as a nomination by the President, no evidence availed to us shows that any investigations regarding these allegations had been done and had informed the assessment of the suitability of the interested party for the position of Chairperson of the Commission.
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In Parliament, the matter was first sent to the Parliamentary Committee for consideration prior to approval by the whole House. The Parliamentary Committee interviewed the interested party as well as the other two appointees to the Commission and considered their Curriculum Vita. The Parliamentary Committee returned a recommendation that the House should reject the appointment of all the three proposed appointees — including the interested party.
There were specific allegations made against the interested party by some members of Parliament relating to his tenure at the Kenya Revenue Authority; that he suspiciously failed or refused to collect Income Tax amounting to Kshs 2. A few members debated that point and documents substantiating it were tabled by Hon.
Boniface Khalwale. When Hon. Gitobu Imanyara tabled the documents which are now presented to this court as affidavit evidence, no substantive debate on the issue followed. Few ventured to the territory of integrity and suitability of the nominees. No evidence whatsoever was tabled to indicate what investigations, if any, had been done to clear the interested party of the serious allegations made against him.
Neither was there any adequate explanation why the allegations against the interested party were brushed aside. Finally, there was no attempt to craft a test which would enable the Members of Parliament determine if the interested party had passed the constitutional test under chapter six of the Constitution. As we have noted above, all the organs involved in the appointment of the interested party had an obligation to ensure that due process was followed and also apply the constitutional test in measuring the qualifications of the nominees.
In our view, procedural propriety of appointment to a State or Public Office includes weighing the qualifications and attributes of nominees or candidates against the constitutional test — in this case, as laid out in chapter six and, specifically, article 73 of the Constitution. Consequently, it is not possible to return a verdict that due procedure in an appointment or nomination to a State or public office has been followed when there is absolutely no evidence that the appointing authority considered the constitutional test.
Additionally, as we held above, a procedure cannot be deemed to have been duly followed if it appears from available evidence that the appointment process was designed and executed in such a way that no proper inquiry into pertinent issues related to the qualifications of the appointee was conducted. From the record presented to the court, it is evident that the appointing authorities gave lip service or no consideration at all to the question of integrity or suitability to hold the office.
Because of this failure, none of them makes any conclusive determination on whether the interested party met the integrity or suitability test set out in the constitution. We consider this failure — the failure to honour the duty to diligently inquire — coupled with the failure to adequately apply the constitutional test to have rendered the procedure used to appoint the Interested Party to chair the Commission to be fatally defective and to be violative of the spirit and letter of the Constitution.
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It is, therefore, constitutionally untenable, null and void. As we previously stated, the court must, where appropriate, review appointment decisions by state organs to State or public offices to determine if the appointees meet the constitutional threshold for appointment. We review using a standard of rationality: whether the decision made by the appointing authority is within the realm of rationality, that is, whether a reasonable person or organ would plausibly make the same decision after applying the constitutional criterion.
If the answer is in the negative, then the court will nullify the determination of the appointing authority. However, the court cannot replace the name of the appointee it has rejected with a name of its choice; it must remand the decision to the appointing authority to appoint another person. Chapter six of the Constitution sets forth principles on the leadership and integrity requirements of public officials.
To illustrate this point, the court may look at a similar article within chapter six, which states that a State officer must be a citizen of Kenyan except for Commissioners and judges, and persons who cannot opt out of dual citizenship. The Executive may breach this mandate in two ways: either it fails to investigate the nominee to determine whether this Article is fulfilled, or it knowingly appoints a State officer who does not meet these standards.
To use article 78 as a parallel example, the Executive has a responsibility to inquire whether or not a nominee is a citizen. If the Executive appoints an individual who is not a citizen either knowingly or not , that appointment would fail to meet the constitutional requirement. This will happen whether or not the appointment process as laid down in the law is meticulously followed.
The appointee must, on his or her part, meet the constitutional requirement of having the requisite integrity, competence, and suitability. As we have already established, the court has a duty to satisfy itself, using a standard of rationality, that determinations on each of these constitutional requirements by other state organs or officials are made in good faith and in accordance with the Constitution.
We are persuaded that this is the only approach to the interpretation of article 73 of the Constitution which maintains fealty to the Constitution and its spirit, values and objects. Kenyans were very clear in their intentions when they entrenched chapter six and article 73 in the Constitution. They were singularly aware that the Constitution has other values such as the presumption of innocence until one is proved guilty.
Yet, Kenyans were singularly desirous of cleaning up our politics and governance structures by insisting on high standards of personal integrity among those seeking to govern us or hold public office. They intended that chapter six and article 73 will be enforced in the spirit in which they included them in the Constitution. The people of Kenya did not intend that these provisions on integrity and suitability for public offices be merely suggestions, superfluous or ornamental; they did not intend to include these provisions as lofty aspirations.
Kenyans intended that the provisions on integrity and suitability for office for public and State offices should have substantive bite.
In short, the people of Kenya intended that the provisions on integrity of our leaders and public officers will be enforced and implemented. It follows, therefore, that those organs and officials to whom the authority to select officials to certain state organs and institutions are delegated have an obligation to ensure that the persons selected for the various positions meet the criteria set out in the Constitution and other legislation for those positions.
Where there are allegations that these organs have failed to discharge this obligation, the court is obligated to step in, when called upon to do so, to investigate whether the process of recruitment and the individuals recruited meet the constitutional requirements. The High Court is the ultimate guardian of the Constitution on behalf of the people of Kenya.
Where the people feel that an individual who was appointed to some office does not meet the requirements of that office, the High Court cannot turn them away simply because the responsibility for that appointment is reserved by the Constitution to the Executive or Legislature. Whereas the appointment is a preserve of the Executive and the right of concurrence is given to Parliament, the enforcement of the Constitution is left to the High Court.
When, then, can the court declare that an appointee or nominee to a state or public office lacks integrity or is unsuitable for the position and that, therefore, it would be irrational and unconstitutional for an appointing authority to appoint them to the position? We concede that the court can come up with no more than a guide; a standard rather than a rule, for each case will be unique and dependent on the facts and circumstances.
A determination of lack of integrity or unsuitability for a position will, therefore, tend to be an intensely fact-based inquiry. Even then, we can offer the general standard to be utilized in making this assessment. To our mind, therefore, a person is said to lack integrity when there are serious unresolved questions about his honesty, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values enumerated in the Constitution.
In our view, for purposes of the integrity test in our Constitution , there is no requirement that the behavior, attribute or conduct in question has to rise to the threshold of criminality. It therefore follows that the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not.
In this particular case, as outlined above, the petitioner alleges that the interested party must have been involved in shady transactions which led to the approval of unsecured loans and the loss of public funds at the AFC. Though the evidence the petition relies on is yet to be tested in judicial proceedings and cannot be taken as the truth of the matter, the allegations are substantial enough that it is not possible for any appointing authority to rationally make a determination without the aid of proper inquiry to resolve the issue one way or the other, that the interested party has passed the integrity test demanded by our Constitution.
We think that the interested party would equally fail the suitability test. Suitability can only be determined by looking at the functions of the office to which the person is being appointed. A recent case decided by the Supreme Court of India puts this suitability test in context. PJ Thomas, however, faced allegations of corruption arising from a criminal case he was involved in years earlier.
The issues presented in that case were still unresolved even though he had never been convicted of any criminal offence. When PJ Thomas was appointed to the CVC, an integrity institution charged with, among other things, investigating corruption, the Supreme Court of India rejected the appointment as illegal. The court pointed out that part of its reasoning was based on the fact that if appointed, PJ Thomas might end up working in the same commission which might be seized of his investigations.
In a passage that is relevant to the present case, the court ruled: The touchstone for the appointment of the CVC is the institutional integrity as well as the personal integrity of the candidate If the selection adversely affects institutional competency and functioning then it shall be the duty of the [appointing authority] not to recommend such a candidate….
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We do not wish to discount personal integrity of the candidate. What we are emphasizing is that institutional integrity of an institution like CVC has got to be kept in mind while recommending the name of the candidate. Whether the incumbent would or would not be able to function? Whether the working of the institution would suffer? If so, would it not be the duty of the HPC not to recommend the person?
So it is in this case. We have already established that on available evidence the interested party faces unresolved questions about his integrity. The allegations which he is facing are of a nature that, if he is confirmed to this position, he will be expected to investigate the very same issues which form the gist of the allegations against him.
It requires no laborious analysis to see that this state of affairs would easily lead many Kenyans to question the impartiality of the Commission or impugn its institutional integrity altogether. Were that to happen, it would represent a significant blow to the very institution the interested party is being recruited to head and lead in its institutional growth.
In our view, this makes the interested party unsuitable for the position. As in the Centre for PIL and a nother v Union of India s supra , we find that the appointing authorities did not sufficiently take into consideration the institutional integrity of the Commission or its ability to function effectively with the interested party at its helm when they made or approved the appointment.
For all these reasons, therefore, the court finds that the appointment of the interested party, Mr Mumo Matemu as the Chairperson of the Ethics and Anti-Corruption Commission offends the requirements of the Constitution , and in particular article 73, and holds the same to be unconstitutional. We hereby set the appointment aside. Costs The question of costs in constitutional petitions is well settled — the court has discretion in awarding costs, which discretion must be exercised judiciously, noting that an order for costs may bar citizens who would wish to litigate constitutional matters that concern fundamental rights or the public interest.
Similarly, article allows any person to institute proceedings claiming the Constitution has been violated or is threatened.
The imposition of costs would constitute a deterrent and would have a chilling effect on the enforcement of the Bill of Rights. In matters concerning public interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed.
Costs should therefore not be imposed on a party who has brought a case against the state but lost. Equally, there is no reason why the state should not be ordered to pay costs to a successful litigant. The court also retains its jurisdiction to impose costs as a sanction where the matter is frivolous, vexatious or an abuse of the court process.
Our Constitution places a premium on the values of social justice and rule of law, patriotism and participation of the public. Without unhindered access by the public to the courts, these values would be undermined. An award of costs is also one of the remedies the court may consider in granting appropriate relief under article 23 3 and article Our approach to the issue of costs in cases concerning the enforcement of fundamental rights and freedoms and for the enforcement of the Constitution is that the court has discretion in awarding costs.
Like all forms of discretion, it must be exercised judicially, in light of the particular facts of the case and giving due regard to the values set out in the preamble of the Constitution and article 10 in order to achieve the objects of article 1. We agree with this reasoning and analysis. In our opinion, this is a matter which was brought to court in good faith and in the interest of the public.
It was litigated in similar fashion. We therefore make no order as to costs. That is also our cue to convey our gratitude to all the counsel who appeared before us. According to two eulogies published in the Daily Nation, he leaves a legacy of family and love, and he is survived by children and grandchildren from both unions.
Kata is remembered as a devoted husband and father in his obituary by Prisca Mukethe Kithyo. Prisca's family has stated that more information on funeral arrangements will be released soon. In his obituary penned by Prisca Mukethe Kithyo, Kata is fondly remembered as a dedicated husband and father. On the other hand, in Agnes Murorunkwere's tribute, the focus was on Kata's personality and how he interacted with others.
Kata's family will host a fundraiser on April 24 at the Nairobi Baptist Church's Children's Tabernacle to raise money to cater for burial expenses. Elsewhere, on August 25, , the family of the late David Njoroge Mwaura raised eyebrows after spending thousands to publish his two but different obituaries in the same newspaper.