By Dann Mwangi
Two weeks ago, the High Court made two fundamental rulings, one touching on whether President Kibaki’s appointment of county commissioners was constitutional and whether candidates seeking election for gubernatorial seats should have degrees or not.
These rulings by Justice Mumbi Ngugi leaves a lot to be desired and must be challenged, legally and scholarly. They remain fundamentally wrong and lack legal validity and reliability.
In the county commissioners petition, the judge erred in the following ways. She declared the appointments unconstitutional on the basis that Article 3 (2) of the Sixth Schedule of the Constitution does not save the Presidential powers under the former constitution.
However, this Article is clear that “Articles 30 to 40, 43 to 46 and 48 to 58 of the former constitution, provisions of the former constitution concerning the Executive...shall continue to operate until the first General Election held under this Constitution...’
This Article gives the president powers in Article 23 and 24 of the old constitution to create offices, appoint and redeploy persons in the transitional period as we head towards the General Election.
Justice Ngigi is of a different view that Article 23 and 24 of the former Constitution were not saved whereas a literal or any other interpretation of this Article would have led her to hold a different view.
In addition, the judge continued to misinterpret the same Constitution that she is expected to jealously guard by relying on suspended Articles of the Constitution to annul the presidential appointments.
She relied on Article 132 (f) of the Constitution whereas Article 2 (1) (c) of the Sixth Schedule of the Constitution elaborates in simple words that Articles 129 to 155 of Chapter Nine are suspended until the final announcement of all the results of the first elections for Parliament under the Constitution 2010 except provisions relating to the election of the President during the first General Election under the Constitution.
Clearly, the judge blatantly refused to appreciate these Articles and was more on an adventure, not based on the Constitution or constitutional theory, to declare the appointments unconstitutional.
Further, although the judge appreciated the High Court ruling in the case of Federation of Women Lawyers & Others –v- the Attorney General No 102 of 2011 that gender principle in Article 27 (8) of the Constitution was subject to progressive realisation, she refused to reasonably articulate why she ignored this precedent but rather chose the easier route of relying on the ruling of Milka Adhiambo Otieno & Another –v- the Attorney General No 44 of 2011.
Milka’s case held that the gender rule principle would be applied automatically.