Workers beware, no one is indispensable

Kethi D Kilonzo

?nclegal@gmail.com

There is a new Sheriff in town.  And it has flexed its muscles.  It has used its constitutional powers to initiate the removal of six members of a very powerful constitutional commission – the Judicial Service Commission (JSC).

The court will in time state whether this power was exercised correctly. And whether it could be exercised in the face of a court order stopping the parliamentary proceedings. But at the end of the day, that Sheriff power is Parliament’s, donated by the people of Kenya through the Constitution, and it cannot be taken away.

Any person can petition Parliament to investigate and start the process of removal of any member of a commission or any holder of an independent office. Everyone can be brought under the spotlight of Parliament. The President, his deputy, Cabinet Secretaries, the Attorney General, the Director of Public Prosecution, members of the IEBC, even the chair of the Ethics and Anti Corruption Commission.

The members of the JSC will have an opportunity to defend themselves either before the court or the tribunal. The court will be given an opportunity to interrogate and interpret the relevant provisions of the Constitution. It will ultimately determine whether JSC is self-regulatory, or subject to parliamentary oversight.

The President was right in part. It was not for him to decide whether or not any commissioners had violated the Constitution or misconducted themselves. Once the decision is made by Parliament, and a petition is presented to him, the President has no choice but to appoint a tribunal. The decision is made in the first instance by Parliament and confirmed or rejected by the Tribunal appointed by the President. The Judiciary has the final say.

The only discretion the President can exercise once moved by Parliament is in deciding the members of the Tribunal and whether or not to suspend the persons to be investigated. Even the choice of members of the Tribunal is not cast in stone. Any member of the Tribunal can be challenged if there are valid grounds.

The wisdom of appointing one tribunal to investigate six members of the same commission begs. Can the proceedings be carried out jointly? By determining charges against one, will they not have made up their minds against the other five? Can one tribunal hear charges against six persons without prejudicing their individual rights to an impartial tribunal?

None of the six members of the JSC holds office in individual capacity. They are representatives of the public, the Law Society of Kenya, the Public Service Commission and the Court of Appeal. Any allegations of wrongdoing are not allegations against the bodies they represent. The groups they represent have the power and can nominate other representatives in acting capacity. If and once cleared, the commissioners can resume office for the remainder of their term.

The Sheriff power of Parliament is so fundamental and must be safeguarded at all costs. Can it be subjected to abuse? Yes. But that is by no means an argument for it not to be exercised.

For now, we have different arms of government who have crossed swords. As a country we should celebrate that independent arms of government are ready to exercise and assert their constitutional authority. Like the threat of the Tower of Babel, should these bodies conspire to forever speak the same language, our freedoms will be at peril.

Parliament has sounded the warning. No one is indispensable.  Every person in public office beware - there is a new sheriff in town!

The writer is an Advocate of the High Court of Kenya