One of the paradoxes of contemporary representative democracy is how public power is often wielded by unelected individuals. It is argued the the complexities of modern-day administration require elected officials to rely on the unique skills and expertise of non-elected – and sometimes, specifically, technocratic – individuals. The civil service can – but does not always – provide such individuals. Consequently, elected officials must reach beyond, and into the private sector, to recruit. But equally, on the other hand, it is argued that such appointments serve as sources of political patronage, they are the “spoils” of political power, they undermine public accountability, and that they contribute to the “revolving door” between politics and big business. An instance of this is the “Special Advisor” [“SpAD“] position in the United Kingdom, which has been critiqued on precisely these grounds.
In this context, the recent judgment of the High Court of Kenya – Katiba Institute vs The Hon’ble Attorney-General – which struck down the appointment of certain “Presidential Advisors,” is a fascinating contribution to the global jurisprudence on this issue. The High Court, here, deployed to great effect what I call here “procedural constitutionalism”: that is, while upholding the power of the relevant constitutional bodies to take certain actions, it insisted on strict compliance with procedural standards of transparency, probity, and institutional independence. Procedural constitutionalism rests upon the faith that, to a large extent, institutional mala fides can be constrained if institutional authorities are required to publicly explain themselves on the touchstone of the Constitution. Procedural constitutionalism – as I shall subsequently argue – is interwoven with other constitutional values such as the culture of justification and popular checks upon elected authority, which the Kenyan courts have keenly protected over the years.
The key issue before the High Court was whether the creation – and appointment – of the Presidential Advisors was compliant with the Constitution. The most relevant constitutional provision was Article 132(4)(a), which authorises the President to establish “an office in the public service [only] in accordance with the recommendation of the Public Service Commission.” (emphasis supplied) The Respondents argued that the PSC had signed off on both the creation of the office of the Presidential Advisor, as well as the specific appointees. Not so, the Petitioners contended: while it was true that the PSC had, in a formal sense, ratified these appointments, a close look at the records showed that these ratifications had come at the behest of the President, demonstrating a fatal non-application of independent reason.
The High Court examined the record. It noted that the record…
… reveals a pattern that significantly undermines the assertion of a substantive and independent recommendation. Several letters from the Office of the President are framed not as requests to establish an office based on demonstrated need, but as communications that the President has identified, selected, or appointed a specific individual and seeks the PSC’s concurrence or its action to hasten the appointment. (para 49)
And:
The PSC’s responses often compound this error by purporting to approve the creation of the office and the appointment in a single sentence, even where the request letter did not explicitly seek creation. (para 50)
To add to this, the High Court found that there were no internal PSC deliberations that demonstrated the need for these positions, that the PSC’s approval letters were cryptic and unreasoned, and that often, they were issued within a matter of days. All of this raised “a legitimate doubt as to whether a genuine, independent consideration, as envisioned by the Constitution, took place.” (para 52) This, the Court held, was a “fundamental procedural defect” that violated the requirements of Article 132. The Court buttressed this constitutional argument by examining statutory violations: the Public Service Commission Act required a written statement verifying the conditions for establishing a new public office had been met (Section 27(2)). Importantly, the Court treated the condition of verification as requiring public reason-giving: that is, “verification” could not simply be a pro-forma recording of satisfaction (as the PSC had done) that the conditions had been met, but required substantive explanation. The PSC’s letters on the other hand “are brief, rarely exceeding a page, and focus almost exclusively on recommending a named individual. They do not attach workload analyses, financial implications beyond perhaps a generic grading if at all, or comparative data on existing posts.” (para 58) Indeed, the PSC had not even complied with secondary legislation – the PSC Regulations – that required a determination of capping and rationalising the number of posts based on objective needs, and an explanation that “the proposed advisor’s technical competencies do not exist in the public service and that they match the job requirements.”
Having gone into the weeds of technical statutory interpretation, the Court then wove these findings into the warp and weft of constitutional analysis. Two crucial constitutional norms were attracted. The first was that of public participation. Given the nature and importance of these advisory functions, the creation of these new posts had to go through the process of public participation. The Court here specifically noted how the 2010 Constitution ushered in the era of active democracy, which envisaged the involvement of the People between, and beyond, simply election cycles and the ballot box (what Roberto Gargarella calls “external checks” on public power). As the Court eloquently observed:
Pre-2010, Kenyans were largely spectators to governance. Their role was that of electoral automatons whose participation in public life was limited to one day, every five years (barring by-elections), to cast their vote and thereafter be silent and uninvolved until the next elections. Under this new and current order, the citizens are individually and collectively active participants in the governance of this nation, albeit having delegated much of the day-to-day responsibilities of steering the nation across three branches and two levels of government. (para 88)
Closely linked to this is a second idea, that of a culture of justification, which we have discussed extensively on this blog. The culture of justification – as distinct from a culture of authority – envisages a constitutional culture where the exercise of public power is opened up to public scrutiny, and must justify itself to the People. The opaque character of these appointments ensured that this had manifestly not been done. As the Court noted: “for the people of Kenya to fully be the Sovereign that they are, they need to participate as appropriate in as much of public life and public affairs as is possible and practical.” (para 92) Breach of this, coupled with the specific statutory and constitutional breaches, meant that the entire process was null and void.
A close analysis of the judgment reveals, however, that even these lofty statements of constitutional principle – that of active democracy and the culture of justification – were rooted in constitutional procedure. At no point did the Court say that Presidential Advisors couldn’t exist. What it did say was that if they were to exist, their existence would have to depend on a good-faith, independent evaluation of need by a fourth branch institution, the PSC, and – crucially – that the process for arriving at this evaluation had to be public, transparent, and demonstrably independent.
I suggest that this iteration of procedural constitutionalism (which bears comparisons both to newer glosses on John Hart Ely’s representation reinforcement theory, and to Ros Dixon’s idea of responsive judicial review) has long been practiced by the Kenyan courts, although they do not explicitly call it such. For example, in the BBI Judgment, when considering the issue of constitutional amendments and popular initiatives, the Court declined to place a substantive check on the amending power, but insisted on rigorous procedural standards, one of which – indeed – was specifically designed to ensure that the President could not bypass what was meant to be an independent, People-driven process with a top-down executive-driven process (see here). If you replace “the People” in the BBI Judgment with the PSC in this judgment, you come to a very similar idea of procedural constitutionalism as a check upon the misuse of public power.
There are, of course, limits to proceduralism: a sufficiently clever, determined, and committed executive can still subvert the spirit of the constitution. What proceduralism does do, however, is to make this substantially harder, while also insulating the courts from executive backlash. An example I like to think of, for instance, is how Latin American constitutionalism approaches the idea of free, informed, and prior consultation before indigenous lands can be taken over for public projects. This “consultation” is not equivalent to a veto, yes. However, think of an example where a railway line is passing through a fragile, indigenous habitat, and it is demonstrated that shifting that line five kilometres to the north will achieve the same goal with minimal financial disruption. Procedural constitutionalism – encased within the principles of active democracy and the culture of justification – will require the state to publicly justify why the alternative is not being taken up. And the very need to justify will rule out extraneous reasons and – indeed – often demonstrate that there is no valid reason for the action (thus forcing a change). We can think of the High Court’s decision in these terms.
Katiba Institute vs Attorney-General, therefore, is both a valuable contribution to the global debate on the increasing role of unelected individuals in governance, as well as to the conversation about the part that constitutional principles such as active democracy and the culture of justification have to play in resolving concrete disputes. The High Court’s seamless shift between the abstract and the particular serves as a case study for how this is to be done in the context of judicial adjudication.
Postscript: The Demonetisation Judgment
Reading the High Court’s judgment, one is struck by an example from India. In early 2023, the Indian Supreme Court upheld demonetisation (six years after the fact). The legal framework was very similar, in that what was required was a recommendation by the central bank (much like the PSC) One of the most astonishing features of the Justice B.R. Gavai (as he then was)-led majority judgment was its observation that the fact that the Reserve Bank of India had taken 24 hours from the government’s communication to decide on something as complex as demonetisation did not mean that its “independence” had not been respected (see e.g., my piece on Schrodinger’s Central Bank). On very similar facts, the Kenyan High Court’s application of common sense and an understanding of basic reality is quite the contrast; indeed, it reminds one of Nagarathna J.’s dissenting judgment in that case, which did employ a similar iteration of procedural constitutionalism. Indeed, the similarities between that judgment and the Kenyan High Court’s PSC judgment are striking. As I wrote at the time:
It is worth briefly flagging Nagarathna J’s analysis of process. In a section titled “Affidavits and Records of the Case”, Nagarathna J observes that the RBI’s own documents show that it was the government that “recommended” demonetisation, that a draft scheme was being made “as desired” by the government, and that a recommendation had been “obtained” from the bank for this (paragraph 17). She also notes that the documents show a conflict between the bank’s goals for demonetisation and the government’s, showing that the so-called “consultation” was illusory (paragraph 17.8); and that furthermore, the records showed that the hurry in which these communications were exchanged (in under 24 hours) – clearly pointing to an absence of application of mind by the bank (paragraph 19).
Both Nagarathna J.’s dissent, and the Kenyan High Court’s PSC judgment, therefore, show how procedural constitutionalism allied with a dose of common sense can serve as a powerful tool of constitutional accountability.