The Legislature and Judiciary are headed for another clash in their never-ending supremacy battles, even as sources alleged a plot by some MPs and the Executive to “fix” judges seen to be frustrating their interests.
Closely guarded sources within the Judicial Service Commission (JSC) told The Standard on Saturday that senior members of the Executive, ganging up with those in Legislature, have been exerting pressure on Chief Justice David Maraga to effect a reshuffle in the divisions of the High Court, with some judges targeted for transfers.
And now the petition filed in the National Assembly seeking the removal of Auditor General Edward Ouko has provided yet another platform for the clash between MPs and judges, with the former angered by the decision of the High Court to halt proceedings against the auditor, which were being handled by the Finance committee of the House.
Speaker Justin Muturi is expected to rule on Tuesday whether the House committee should honour the court ruling and stop the proceedings, with debate still ranging on whether the courts can injunct parliamentary processes.
Majority Leader Aden Duale led the attack against the decision of the court, vowing that MPs will fight for their space.
In an interesting turn of events, two commissioners with the JSC yesterday revealed that Justice Enock Chacha of the Constitutional Court Division, who issued the orders against the National Assembly, was among those targeted. “We are aware of the pressure to transfer judges from the constitutional division for issuing orders against the National Assembly. But we will not allow any person to interfere with the Judiciary’s independence,” said JSC commissioners, who sought anonymity.
According to the commissioners, they had information about attempts to summon principal judges and heads of division to prevail upon some judges to avoid making far-reaching decisions against the Executive and Parliament.
“The problem is that those opposed to certain judges are approaching the Judiciary’s leadership to get them out. This is unacceptable under our watch, given that there are clear provisions on what to do when dissatisfied with any ruling,” said the commissioner.
The attempt to have Justice Chacha transferred comes a few months after a similar onslaught against Justice George Odunga, who was being accused of being partisan in his decisions. Duale publicly criticised Justice Odunga, accusing him of bias.
The fight for supremacy appeared to intensify after the ruling on Ouko, with opinion sharply divided on the decision by the court. “A parliamentary process cannot be stopped by a court. Judiciary cannot purport to stop an oversight function of a committee of Parliament, when it is their constitutional mandate to do so,” said Duale, who added they were ready to wage the fight to ensure powers given to the Legislature in Article 93, 94, 95 and 96 of the Constitution are not taken away. He said that while they awaited the ruling of the Speaker, they expected he will stand by the independence of Legislature.
But lawyer Otiende Amollo, of Rachier and Amollo Advocates, faulted Duale’s position, saying while courts cannot stop the legislative process, it is within their powers to stop any other body undertaking a quasi-judicial process, as is the case of Ouko before the Finance committee.
“When Parliament is acting as a quasi-judicial tribunal, then it is inferior to the High Court,” explained Omollo. Ouko has challenged the House committee’s process arguing that the manner the case was being handled cannot grant him a fair hearing. The House committee is listening to a petition filed by citizen seeking to remove Ouko from office over claims of corruption and abuse of office.
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