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CIC Chairman Charles Nyachae writes to Uhuru over JSC and parliament

By Philip Mwakio | Nov 9th 2013 | 3 min read
                                             CIC chairman Charles Nyachae      PHOTO: COURTESY


By Philip Mwakio

The Commission on the Implementation of the Constitution (CIC)  has written to President Uhuru Kenyatta and the chairman of the National Assembly's Constitution Implementation Oversight Committee over concerns on  emerging conflicts between  the judiciary and parliament.

In the letter to the Constitution Implementation Oversight Committee chairperson, Mr Njoroge Baiya , dated  November 8, a copy of which Standard on Sunday has seen, CIC chairman Charles Nyachae said that they are concerned  about the raging conflicts  between the judiciary and parliament  and their possible impact on the rule of law  and the implementation of the constitution.

CIC has also indicated that in view of the gravity of the matter, they have separately written to the Head of State to convene an urgent meeting  will all the heads of the concerned institutions and any other interested parties , the President may deem necessary to discuss possible solutions  to the emerging crisis.

‘’ The most recent expression  of this conflict  occurred when the National Assembly Committee of Justice and Legal Affairs  summoned members of the Judicial Service  Commission (JSC) to respond to issues raised over the sacking of  the Chief Registrar of the Judiciary, Gladys Boss Shollei ," Nyachae said in the letter.

He said in the letter that members of JSC  refused to honour  the said summons , quoting inter alia ,the independence of the judiciary  and of the commission.

‘’ We believe that the actions by the JSC  members compromised Parliament’s mandate  to exercise  oversight  over State organs  as provided  in Article 95(5)b and that the members in any event acted contrary to the express provision  of the article 125 of the Constitution , which allows Parliament and any of its committee to summon any person to provide information,’’ Nyachae said.

The CIC boss explained that the intensity of the conflict has now increased  with the recent ruling by the speaker of the National Assembly,Justin Muturi  in which he ruled  that the National Assembly  is not subject to any orders  from the Judiciary in respect of its proceedings.

"In our own view, this position runs counter  to the Constitutional granted  to the Judiciary  under article  159 to do justice  to all irrespective of status and in particular the jurisdiction of the High court to hear and make determination on any question as to whether  anything said to be done under the Authority of the Constitution or any law is in conflict with or  is contravention of the Constitution,’’ Nyachae added.

Nyachae said that remarks by the Speaker in one of his meetings with members of the Kenya Private Sector Alliance on November 7th that the decision of  the Supreme Court on division of revenue Bill  has no relevance  and that whatever the court  said is its own position and does not  affect  the decision of the Assembly  is of even greater concern.

 "Our concern is that the continued rejection of each other’s constitutional powers  by the two critical  arms of the government  poses major challenges to the rule of law and will inevitably  compromise the implementation of the constitution  in which  the two  institutions  are principal players," Nyachae further said .

He added, indeed if the two institutions reject each others  jurisdiction, they will create  an environment where other organs  will reject oversight by the two authorities  on similar grounds thus leading to possible anarchy.

"As the parliamentary  committee mandated to look into ways  of resolving  impediments to implementation of the constitution, we would like to hold  an urgent meeting  with you to consider  ways in which we can work together  to mitigate the looming crisis, even as we await the actions of the Head of State," Nyachae told Baiya in the letter.

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