Uphold Constitution, Judge tells colleagues

By Harold Ayodo

A judge has said the Judiciary must uphold the Constitution, terming as arrogance for judges to question the legality of the Constitution.

In a ruling issued in Mombasa last week, Justice Mohamed Ibrahim made statements that appear to counter arguments put forth by three judges who declared a section of the Constitution that established Kadhi courts illegal.

Justice Ibrahim spoke when he dismissed a case challenging inclusion of Kadhi courts in the proposed Constitution.

The case was filed by three officials from Mombasa Pastors Fellowship, Bishop Joseph Kimani, Rev Musyoka Nzui and Agnes Mbinya, who wanted the review stopped because they alleged that their rights would be infringed on by among other things the inclusion of Kadhi Courts in the new law.

In the ruling, he explains why it is wrong for judges to question the constitutionality of the Constitution.

The judge poses the question: "Can the High Court purport to question and interpret the constitutionality of the Constitution itself?"

"This would be the height of judicial arrogance and usurpation of the supremacy and legislative functions of Parliament," he says to answer the question.

The judge said the High Court lacks the power to decide whether sections of the Constitution were legal or illegal.

At all costs

The judge appeared to be guiding fellow judges when he said that the sanctity of the Constitution "must be respected and preserved at all costs".

"This is not an academic or theoretical jurisprudential principal or statement," he added.

The judge also delved into the issue of jurisdiction. After the three judges — Justice Joseph Nyamu, Roselyn Wendoh and Anyara Emukule — passed their controversial ruling on Kadhi Courts, they were accused of stepping into issues over which they had no jurisdiction.

"All and sundry ought to appreciate the principles and law relating to Jurisdiction. Jurisdiction is only conferred by the Constitution and thereafter by an Act of Parliament. It cannot be conferred by judicial interpretation or sanctimonious jurisprudential discourse," he said.

Ibrahim said judges must be cautious when dealing with issues about the Constitution.

The judge stated that no arm of Government besides Parliament could purport to alter or amend the Constitution.

The judge rejected a request by the applicants to declare a section of the constitution inferior to the other.

Assume jurisdiction

"On what basis can I as a judge interpret or construe that section 60 is superior to section 60A and, therefore, assume jurisdiction over matters or disputes touching on the review process. I do hereby hold that all sections of the Constitution are the same and none is superior to the other," he said.

In contrast, the three judges had said that a section of the Constitution providing for Kadhi Courts was inconsistent with other provisions.

"How can I as a High Court judge question, disparage or sit over judgement of the very Constitution, which established the High Court" said Justice Ibrahim.

As Kenyans search for a new constitution, the judge said, the current one must meanwhile be defended.

"The High Court must remain the ultimate defender and enforcer of the Bill of Rights as enshrined in Chapter V of the current Constitution," he said.

Legal creature

The Judge stated that the High Court was a legal creature of the Constitution and subject to and inferior to the Constitution.

"I am of the firm view that the High Court has no legal moral authority or power to judge over the Constitution of Kenya," he added.

"All Judges of the High and Appellate Court subscribed and took the Constitutional oath to protect and defend the Constitution when on duty," he said.

Meanwhile, Attorney General Amos Wako has filed a Notice of Appeal against the ruling by the three judges, also terming it unconstitutional.