The Judicial Service Commission (JSC) has commenced interviews to fill vacancies at the Court of Appeal, with renowned constitutional scholar Professor Migai Akech becoming the first candidate to appear before the selection panel.
During the interview, the panel posed a critical constitutional question on the procedure for the removal of Cabinet Secretaries (CSs) from office. While the Constitution outlines the grounds for removal, commissioners noted that it appears silent on the specific process the President should follow, raising concerns over whether dismissed Cabinet Secretaries are entitled to due process.
In his response, Professor Akech underscored the importance of a strong and effective executive. He argued that the President must retain sufficient discretion to appoint and dismiss Cabinet Secretaries in order to govern effectively. According to him, the authority to relieve Cabinet members of their duties is inherently political and should not be subjected to the same standards as ordinary employment relationships.
Professor Akech maintained that Cabinet Secretaries occupy political offices, and as such, their removal cannot be equated to termination under employment law. He cautioned that imposing rigid procedural requirements similar to those governing employer–employee relationships could weaken executive efficiency and hinder governance.
“We must have an effective executive,” he said, emphasizing that political accountability operates differently from administrative or contractual accountability. He added that allowing the President flexibility in choosing whom to work with is essential to the proper functioning of the executive arm of government.
Despite his long-standing reputation as a defender of constitutionalism and human rights, Professor Akech reiterated that political appointments require a distinct legal and constitutional approach. He argued that accountability for Cabinet Secretaries lies primarily in the political arena, rather than through procedural protections associated with ordinary public service roles.
On the issue of public participation, Professor Akech observed that while it is a constitutional principle that cuts across public life, it remains highly subjective. He referenced the Building Bridges Initiative (BBI) case, noting that even judges differed in their interpretation of what constituted adequate public participation.
He proposed that courts could strengthen the doctrine of public participation by developing clearer and more contextual indicators, rather than applying rigid or uniform standards that may undermine legislative processes. “We need more to be able to have contextual indicators,” he stated.
Addressing concerns about performance and workload, Professor Akech told the panel that he has authored more than 80 academic articles and expressed confidence in his capacity to manage the demands of the Court of Appeal should he be appointed.
The ongoing JSC interviews are expected to play a key role in shaping the future composition of the Court of Appeal, with candidates being assessed on their legal philosophy, experience, and ability to uphold constitutional principles while ensuring efficient administration of justice.
