By Gibson Kamau Kuria
In every democracy, it becomes necessary from time to time for the Judiciary to assert in a robust manner its independence when challenged by either of the other two arms of the government.
The time for the Kenyan Judiciary to assert its independence which has been challenged by the National Assembly through issuance of summons to members of the Judicial Service Commission (JSC), has come.
There are three ways in which members of JSC may handle the illegal summonses to appear before the Legal Affairs and Administration of Justice Committee and assert the independence of the Judiciary, which is protected by chapter ten of the Constitution. Without that independence, protection of the rights of the individual is not possible.
The first way is to ignore the summons altogether because they are null and void and of no legal effect.
The second is for the Chief Justice, Dr Wily Mutunga, in his capacity as chairman of the JSC to write to the Speaker of the National Assembly and chairman of the committee Samuel Chepkonga and explain why JSC is not permitted by the Constitution to honour the summons.
The third is to follow the example of former CJ Alfred Simpson when he was summoned by the Judicial Commission appointed to Inquire into allegations involving Charles Mugane Njonjo in 1983 to explain why he handled the treason case of Andrew Muthemba the way he did.
He appeared before the commission and explained that according to both the Evidence Act and the Constitution, he could not be asked or compelled to testify on how he discharged his judicial duties. Section 129 of the Evidence Act provides that no judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any question on his conduct in court...or to anything which came to his knowledge in court as such judge or magistrate.
A member of the JSC cannot similarly be summoned to explain what he did on August 19, 2013. The CJ will appear before the House on whose behalf the Committee is acting and explain that under Article 168 of the Constitution, his commission is the constitutional organ, which the Kenyan people have established to promote and facilitate the independence and accountability of the Judiciary.
The House committee made a mistake in summoning members of the JSC to appear before it and explain how they exercised their constitutional functions when they suspended Mrs Gladys Boss Shollei, the Chief Registrar of the Judiciary.
It is exercising a pretended power to make the JSC accountable to the Kenyan people. The latter have not given that power to it. Article 160 of the Constitution has conferred upon the Judiciary independence to enable it to protect the basic rights of every individual, while Article 172 has vested in JSC alone the power to promote and facilitate the independence and accountability of the Judiciary. Under that article the commission alone has the power to appoint and remove from office such administrative officers as the Chief Registrar. Those summonses are therefore null and void.
Gibson Kamau Kuria, Senior Counsel
