Court ends President Uhuru Kenyatta’s bid for a tribunal to probe JSC team

Chief Justice Willy Mutunga (right) congratulates new Judicial Service Commission member Tom Ojienda (left) after being sworn in at the Supreme Court on Monday. [PHOTO: COURTESY]

By KURIAN MUSA

NAIROBI, KENYA: Investigations of six members of the Judicial Service Commission (JSC) will not go on after the high court quashed the Tribunal made by president Uhuru Kenyatta determined in a landmark ruling delivered Tuesday.

The appointment of the Justice (Rtd) Aaron Gitonga Ringera, Jennifer Shamalla, Ambrose Otieno Weda and Mutua Kilaka by the President as members of the Tribunal to investigate the six JSC Commissioners under Special Gazette Notice No. 15094 was declared quashed.

The four were prohibited from taking oath, assuming office, carrying on or in any way discharging their mandate as members of the Tribudischarging their alleged mandate.

The six members of the JSC who were to be investigated included Ahmednasir Abdullahi, Dr Samuel Kobia, Prof Christine Mango, Justice Mohamed Warsame, Ms Emily Ominde and Ms Florence Mwangangi.

The ruling means they can now have their jobs back. However, two of the members — Ahmednassir representing the Law Society of Kenya (LSK) and Justice Warsame for judges — have since been replaced after their terms lapsed.

High Court Judge Aggrey Muchelule replaced Justice Warsame while Prof Tom Ojienda replaced Ahmednassir and were sworn in on Monday.

Tuesday, in the landmark ruling by the five judges, who included Hellen Omondi, Christine Meoli, Mumbi Ngugi and Hillary Chemitei, declared that the JSC, as a constitutional commission, is not subject to the control or direction of the National Assembly.

CONSTITUTIONAL MANDATE

“Neither can its Departmental Committees established under the Standing Orders in the lawful discharge of its Constitutional mandate under Article 172 of the Constitution do so,” Justice Mwongo said while delivering the decision of the bench.

Parliament had declined to be party to the court proceedings although the court had agreed with the JSC that the Speaker of the National Assembly, Justin Muturi, was properly enjoined in the proceedings.

Also in the ruling the judges declared that the High Court has jurisdiction in relation to activities of the other two arms of government.

“Judicial intervention by the High Court is not a violation of the doctrine of separation of powers in so far as the court is performing its solemn duty under the Constitution in inquiring into alleged constitutional violations or contraventions,” added Justice Mwongo.

They further went on to state that, “Parliamentary oversight of constitutional commissions and independent offices anticipate a purposeful, strategic, lawful, objective and carefully structured oversight for accountable governance for the achievement of a better quality of life for the people of Kenya.”

The judges declared that the National Assembly, through the Departmental Committee on Justice and Legal Affairs, is not entitled to supervise the decisions of the JSC when the Commission is discharging its lawful mandate under the Constitution.

“Oversight connotes the constitutional imperative aimed at the enhancement of democracy and the rule of law through upholding and protecting the financial and administrative independence of constitutional commissions,” added Lady Justice Mumbi, while reading part of the judgment.

At the same time the judges quashed the proceedings before the Committee on Justice and Legal Affairs seeking the removal of members of the Commission.

“The resolution of the National Assembly to transmit the petition to the President in defiance of a court order is null and void and is hereby quashed,” added Justice Mwongo.

The judges made a raft of recommendations to Parliament urging MPs to be innovative in order to efficiently carry out their oversight role over the new entities, so as to realise benefits for Kenyans.

INDEPENDENT OFFICES

Among these recommendations the judges noted that Parliament should consider the establishment of a committee within the House dedicated to the oversight of all the independent offices and commissions.

The court further recommended that the three arms of Government namely the Executive, Judiciary and Parliament, consider developing a protocol for engagement between their heads.

“This is to facilitate amicable discussion and resolution of issues of governance and areas of potential conflict, in the spirit of co-operation and mutual respect that underlies our Constitution,” they added.

The suspensions were the culmination of a bitter struggle within the Judiciary sparked off by the controversial suspension of former Chief Registrar of the Judiciary, Mrs Gladys Boss Shollei in August.

Shollei has since been absolved by a High Court Judge from allegations that had been leveled against her, with a further declaration that she was dismissed unfairly.

The Judiciary has since been ordered to compensate her for the damages incurred owing to the unlawful dismissal. She is also in court seeking to get back her job.

Meanwhile, two members of the Judicial Service Commission (JSC) have finally been sworn into office after three months of uncertainty.

The swearing in of JSC members Tom Ojienda and Justice Aggrey Muchelule now turns the focus on President Uhuru Kenyatta who is yet to gazette another member of JSC.

The two were sworn in on Monday by Registrar of the Judiciary Anne Amadi in a brief occasion witnessed by Chief Justice Willy Mutunga.

Prof Ojienda represents the Law Society of Kenya (LSK) in the commission while Muchelule represents Judges and Magistrates Association.

The tenure of Prof Christine Mango has also lapsed and the president is mandated to appoint a replacement.

The CJ said the commission had set standards on open recruitment of judicial staff and had also been taking firm stand on serious matters of national importance.

LSK has also protested the failure by the President to gazette the 25 judges despite the names having been forwarded to his office on January 10, this year.

LSK, through its chairman, said the delay in the gazettement had led to the backlog of cases and also hampered the operations of the JSC.

“We call on the President to do his constitutional duty and alleviate the suffering of the public by gazetting the names and swearing in the new judges,” said LSK chairman Eric Mutua.