Crisis looms as court blocks Uhuru's order on JSC tribunal

By KURIAN MUSA

Kenya: The country could be facing a constitutional crisis following the High Court’s suspension of the swearing in of a tribunal set up to investigate the conduct of six members of the Judicial Service Commission.

The move deepens the rift between the presidency and the courts. Justice George Odunga made the order suspending the Kenya Gazette notice on the formation of the tribunal by President Uhuru Kenyatta, pending the hearing of an application filed by JSC to stop the investigation.

“The chairperson and the members of the tribunal appointed vide gazette notice dated 29th November, 2013 are hereby barred from commencing the investigations into the conduct of the six commissioners pending the hearing and determination of the Notice of Motion dated December 2, 2013, with all parties present,” he stated.

The judge granted stay orders of the gazette notice No. 15094 appointing the tribunal members chaired by Justice (rtd) Aaron Ringera.

Other members of the suspended tribunal are lawyers Jennifer Shamalla, Ambrose Otieno Weda and Mutua Kilaka.

The JSC’s  lawyer, Senior Counsel Paul Muite, filed proceedings, in which he argued that President Uhuru Kenyatta acted unconstitutionally when he suspended the six commissioners.

They are Ahmednasir Abdullahi, Rev Samuel Kobia, Christine Mango, Justice Mohamed Wasarme, Emily Ominde and Florence Mwangangi. They were suspended on Friday by Uhuru, who promised that the Judiciary would not be compromised in issuing justice in the court rooms.

Necessary quorum

But his action effectively crippled the JSC as it now lacked the necessary quorum to conduct business, including hiring of judges.

The JSC is an independent commission established by Article 171 of the Constitution and comprises part-time commissioners whose mandate is recruitment of judges, recruitment and disciplining of Judiciary staff.

The judge said he would not like to deal with Parliament’s defiance of the court order at this stage, and allowed the amendment of the petition to enjoin the tribunal’s members mentioned as respondents in the matter.

“Since the courts are the temples of justice and the last frontier for the rule of law, court decisions must be respected and the dignity of the courts upheld at all times,” said Justice Odunga.

The judge reinstated the six commissioners by saying that his orders of October 30, 2013, restraining the Justice and Legal Affairs Committee of the National Assembly from debating the petition before it pending inter-parties hearing of the matter, was still in force.

Justice Odunga said that a court order barring the National Assembly from discussing suspension of the six was still active.

He noted that his orders to stop any proceedings of any nature to remove the six commissioners had not been lifted.

“Conservatory orders in my view are meant to keep the subject matter of the dispute maintaining the status quo,” he said.

Article 4(1) of the Constitution declares the national values and principles of governance as the foundation upon which Kenya as a multi-party democratic State is grounded.

The judge also referred to Article 10 of the Constitution that binds all State organs, officers, public officials and all persons whenever interpreting the Constitution, or implementing public policy, to invoke the rule of law under Article 255. Any amendments to the same must be subjected to a referendum, he said.

“It is, therefore, clear that an attempt to ignore the same may amount to an attempt to usurp the powers of the people, which the people reserved unto themselves under the said Article 255,” Odunga ruled.

In a statement released earlier, Uhuru noted that on November 14, “the National Assembly in accordance with Article 251(3) of our Constitution” forwarded him a petition requesting the suspension and formation of a tribunal to investigate the conduct of six Judicial Service Commissioners.

He further noted that Article 251(4)(b) mandates him to form a tribunal and is couched in mandatory terms, leaving no room for discretion.

Uhuru said he had no choice but to follow the dictates of the law, failure to which would set a bad precedent for the country.

He added that the two-week hiatus between the receipt of the petition and the formation of the tribunal was for him to understand and mediate the perceived conflict between the National Assembly and the Judiciary.

Uhuru said this was why he called for the tripartite meeting with the Chief Justice and the Speaker of the National Assembly.

But in a swift rejoinder, CORD’s co-principal and former Prime Minister Raila Odinga said there was a failure of leadership when the Speaker of the National Assembly, Justin Muturi, allowed the Justice and Legal Affairs Committee to act on the dispute between the JSC and former Chief Registrar of the Judiciary, Gladys Boss Shollei.

He said it was an internal matter in the Judiciary and under the deliberation of the JSC.