Better Public Appointments: Matemu Integrity Review
A court reviewing a public appointment faces a difficult balance. If judges refuse to examine appointments at all, constitutional standards of leadership and integrity can become political promises with no legal consequence. If judges reassess every candidate as though they were members of the selection panel, the court itself begins to take over a function assigned to Parliament, the Executive or another appointing institution.
Matemu v Trusted Society of Human Rights Alliance is valuable
because it explains the space between those extremes. The Court of Appeal
accepted that Chapter Six of Kenya's Constitution is enforceable and that
public appointments can be reviewed. It nevertheless insisted that the judicial
question is ordinarily legality and rationality, not whether judges personally
regard one candidate as better than another.
The
appointment dispute
Matemu v Trusted Society of Human Rights Alliance & 5 others,
Civil Appeal 290 of 2012 [2013] KECA 445 (KLR), concerned the appointment of
Mumo Matemu as chairperson of the Ethics and Anti-Corruption Commission. A
statutory selection process had advertised the office, shortlisted and
interviewed candidates and ultimately resulted in Matemu's nomination and
parliamentary approval.
Trusted Society challenged the appointment. It relied on allegations
connected with Matemu's earlier work at the Agricultural Finance Corporation
and argued that he did not meet the constitutional integrity requirements for
leading the anti-corruption commission. The High Court set aside the
appointment, concluding that the appointing institutions had not sufficiently
investigated the material raised against him.
The Court of Appeal reversed that result. Importantly, it did not
say that Chapter Six was non-justiciable. It accepted that courts may review
public appointments for constitutional and statutory compliance. The error, in
its view, was that the evidence and pleadings did not justify the degree of
judicial substitution that had occurred.
Standing
opens the door, but proof still wins the case
One important feature of Matemu is its approach to public-interest
standing. Articles 22 and 258 of the Constitution deliberately moved Kenya away
from narrow rules requiring every claimant to prove a private injury. A civil
society organisation can therefore challenge a public appointment in the public
interest where the case genuinely raises constitutional legality.
That broad standing does not lower every other legal requirement.
The claimant must still identify what was done, which constitutional or
statutory duty was breached and how the available evidence proves the defect.
Matemu reaffirmed the Anarita Karimi Njeru requirement of reasonable precision
while warning that precision is not mathematical exactitude.
This distinction remains important in current public law. A
petitioner may have full standing and still lose because the pleaded case is
vague or the evidence does not connect the challenged decision to a
constitutional violation. Standing answers who may bring the case. It does not
answer whether the case is proved.
The
rationality test protects both integrity and institutional roles
The Court of Appeal framed review around a rational connection
between the appointment process and the legal purpose of the office. A court
may ask whether the responsible body considered the legally relevant criteria,
complied with mandatory procedure and dealt rationally with material bearing on
integrity or suitability. It may intervene where the process ignores the law,
rests on irrelevant considerations or lacks any rational connection with the
statutory and constitutional objective.
What the court should ordinarily avoid is an independent merits
assessment of the candidate. Judges do not sit as an additional interview panel
simply because they might have weighed experience, temperament or allegations
differently. Institutional deference is therefore not immunity. It protects a
lawful exercise of assigned discretion, not arbitrary or unconstitutional
appointment.
Recent Kenyan appointment litigation continues to rely on this
distinction. Courts considering challenges to appointments in 2025 cited Matemu
when analysing whether review should test procedural legality and rationality
without replacing the judgment entrusted to the selecting or approving
institution.
The
current legal framework is broader than it was in 2013
The statutory environment has changed since Matemu was decided. The
Ethics and Anti-Corruption Commission Act has been amended several times,
including changes in 2024 and 2025. Its current provisions continue to require
the chairperson and members of the Commission to satisfy Chapter Six standards
and specified professional qualifications.
The Leadership and Integrity Act is also current and was amended by
the Conflict of Interest Act 2025. It remains the principal statute giving
effect to Chapter Six through standards governing State officers. Where
parliamentary approval is required, the Public Appointments (Parliamentary
Approval) Act continues to regulate the approval process and the matters
Parliament must examine.
A modern challenge should therefore not rely on Matemu alone. The
advocate must identify the constitutional article, the current version of the
statute governing the particular office and the specific appointment procedure
that applied when the decision was made. A precedent supplies the test; current
law supplies the present duty.
International
integrity standards add context, not a substitute test
The United Nations Convention against Corruption offers a useful
international reference point. Article 7 encourages public-sector recruitment
and appointment systems based on efficiency, transparency and objective
criteria such as merit, equity and aptitude. The African Union Convention on
Preventing and Combating Corruption also emphasises integrity and
anti-corruption measures in public service.
These instruments do not replace Kenya's Constitution or determine
whether a particular nominee satisfies Article 73. Their value is contextual.
They reinforce the policy behind transparent, objective and integrity-based
public appointment systems while leaving the domestic legality of an
appointment to Kenyan constitutional and statutory law.
For legal writing, that distinction matters. International standards
can illuminate why a transparent and evidence-based appointment process is
important, but the court must still decide the case through the Kenyan
provisions governing the office.
How
to challenge an appointment effectively
A strong challenge should be organised around an institutional
failure that can be proved. The claimant should identify the legal criteria for
the office, the stage at which the alleged defect occurred, the material that
was before the decision-maker or ought lawfully to have been considered, and
the reason the process lacked a rational connection to the constitutional
purpose.
Evidence is especially important in integrity cases. Allegations may
justify inquiry, but an allegation is not automatically proof of misconduct.
Relevant material can include the advertisement, statutory qualifications,
shortlist, interview record where available, public memoranda, committee
reports, Hansard, official reasons, verified investigative findings and
correspondence showing how a concern was handled.
The remedy should also fit the defect. Where the problem is an
unlawful process, reconsideration through a lawful process may be more
institutionally appropriate than an order effectively selecting or rejecting
the candidate on the court's own view of the merits.
What
appointing bodies should learn from Matemu
Selection panels, parliamentary committees and executive offices
should build a record capable of explaining why their decision was lawful.
Published criteria should be applied consistently. Credible integrity concerns
should be acknowledged and assessed. Reasons should show that the institution
considered the matters the law required it to consider.
A transparent record makes judicial deference more likely because
the court can see the rational path from legal criteria to outcome. An opaque
process creates the opposite problem. If the institution cannot show what it
considered or why it reached its conclusion, the court has less reason to
assume that constitutional standards were genuinely applied.
Matemu therefore improves appointments from both sides of
litigation. It disciplines claimants by requiring precision and evidence, while
also disciplining public bodies by demanding an appointment process connected
to constitutional purpose.
Why
the case matters
Matemu is not a judgment saying that courts should keep away from
public appointments. It is a judgment about how courts should intervene.
Chapter Six is law. Public-interest standing is broad. Yet constitutional
review remains review, not a second appointment exercise.
For ordinary readers, the distinction can be expressed simply: a
court may ask whether the lawful decision-maker used a lawful, rational and
constitutionally relevant process. It should not normally ask whether the judge
personally would have chosen the same candidate.
That balance explains why Matemu continues to be cited. It protects
public institutions from judicial substitution while preserving a real judicial
remedy where integrity, legality or mandatory appointment standards have been
ignored.
Source note
This article is based on Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), the Constitution of Kenya 2010, the current Ethics and Anti-Corruption Commission Act, the Leadership and Integrity Act as amended through 2025, the Public Appointments (Parliamentary Approval) Act, recent Kenyan appointment litigation applying Matemu, the United Nations Convention against Corruption, and the African Union Convention on Preventing and Combating Corruption.
Suggested citation:
Ronald Serwanga, “Better Public Appointments: Matemu
Integrity Review” East Africa Legal Insight (8 September 2026).