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Judges lack authority to hear MCA's case, says AG Kihara Kariuki

Attorney General Paul Kihara Kariuki. [Chemtai Lochakapong,Standard ]

The Attorney General has challenged the jurisdiction of a three-judge bench formed to hear and determine a case challenging a section in the Constitution that requires MPs and MCAs to resign once they change political parties.

Through lawyer Jackline Kiramana, AG Kihara Kariuki claims judges Joel Ngugi, Hillary Chemitei and Teresia Matheka have no authority to hear the case filed by Kabazi MCA Peter Mbae.

The three judges were appointed by Chief Justice Martha Koome in April. Mbae wants the court to stop MPs and MCAs from losing their seats once they resign from their political parties.

However, in her submissions yesterday, Ms Kiramana said Mbae’s petition is not a constitutional petition. She said the petition raises a question that needs the court to issue an advisory opinion rather than hear and determine.

Kiramana said as per the law, only the Supreme Court of Kenya has jurisdiction to give an advisory opinion on any constitutional questions.

“The petition pits the provisions of two articles of the Constitution (Section 103 and Article 38) against each other,” claimed Kiramana. According to Section 103, MPs or MCAs lose their seat when they resign from their sponsoring political parties.

However, Article 38 of the Constitution allows MPs to hold office for a term of five years. Kiramana claimed it is obvious in law that no person, court nor State organ can challenge the legality of the Constitution or any of its provisions because it is supreme.

“The court cannot impeach any provision of the Constitution as that would be usurping the will of millions of Kenyans,” she submitted.

She said no article is superior to the other and all articles must be read together rather than in isolation.

“The High Court lacks the mandate to issue advisory opinions and the same is the preserve of the Supreme Court of Kenya,” she said.

The lawyer said the petition was defective and unmerited and the court lacked jurisdiction to prioritise any single article of the Constitution over another.

She said in their five-year term, MPs and MCAs who were dissatisfied with the workings and policies of their sponsoring party had the opportunity to leave the party and seek re-election in another party or as an independent candidate.

Mbae wants Article 38 to be declared superior to Section 103 of the Constitution because the two articles raised legal uncertainties. The court will give a judgment date on June 20.