By Judy Ogutu
The AG argues Justice Weldon Korir erred by allowing President Mwai Kibaki to be made subject of a civil matter contrary to the Constitution.
Prof Githu Muigai has referred to Article 143 (2) of the Constitution, which states that civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office.
The Judge, Muigai further argued, failed to appreciate that the President acted within his constitutional authority in appointing the caretaker board, whose mandate was to investigate improper and irregular goings at the NHIF.
Justice Korir suspended the caretaker board saying President Kibaki did not follow the law in doing so.
“There is an apparent non-compliance with the provision of the law. In the circumstances I agree with the applicants that the said decision should be suspended pending hearing and determination of the substantive notice of motion,” Justice Korir ruled.
Kenya Medical Association (KMA) had rushed to court seeking for temporary orders suspending Kibaki’s decision pending hearing and determination of the case.
KMA had accused the President failing to follow the requirements of Section 4 of the NHIF Act, which requires him to appoint the PermanentSecretary (PS) Treasury or his representative to the board.
KMA had contended that President Kibaki failed to take into consideration the minister’s power to appoint two individuals to the board. Also required in the board is the chairman of KMA, which according to them was not done.
Two months ago, President Kibaki appointed a caretaker board following an alleged Sh4.3 billion civil servants health scheme scandal.
Kibaki, they told the court, also failed to take into consideration the minister’s power to appoint two individuals to the board.