Lawyers raise the red flag over MPs, Judiciary tiff

By Harold Ayodo

Turf wars between the Judiciary and Parliament have plunged the country into a crisis.

Legal experts have warned that the supremacy battles between the two arms of Government have led to a constitutional impasse.

They concur that the confrontation follows arrogance, ignorance or gross misinterpretation of the Constitution. Chairman of the Commission for the Implementation of the Constitution (CIC) Charles Nyachae says the standoff has led to a constitutional crisis.

“The impasse between Parliament and the Judiciary is the biggest challenge that we (CIC) have faced on implementation of the three-year-old Constitution,” Nyachae says.

Nyachae says the turf wars spilled to the fore following the Judicial Service Commission (JSC) disciplinary proceedings against former Judiciary Chief Registrar Gladys Shollei.

“We are in a constitutional impasse after Parliament snubbed a High Court order against initiating a process to remove six JSC Commissioners over allegations of impropriety,” Nyachae says.

Nyachae was speaking at the Law Society of Kenya (LSK) Forum on the JSC/Judiciary and Parliament Standoff at Serena Hotel Nairobi on Wednesday.

Nyachae says CIC wrote a letter to President Uhuru Kenyatta, Chief Justice Willy Mutunga and National Assembly Speaker Justin Muturi requesting a meeting to solve the crisis amicably.

The CIC Chairman says that the JSC ought to have appeared before the Parliamentary Committee in line with Article 125 of the constitution.

House summons

“JSC should have honoured the summons but tell the Committee that it will not respond to its questions following protection of the Constitution,” Nyachae says.

Article 125 of the Constitution empowers Parliamentary Committees to summon any person to give evidence or provide information. Even as the CIC Chairman says Parliament has powers to summon anyone before it to adduce evidence, it is not supreme to the Constitution, which established the National Assembly.

“We are in a crisis as Parliament assumes that it is supreme yet Article Two of the Constitution is explicit that the document is the supreme law of the land.” Nyachae says. The director of the defunct Committee of Experts on Constitution Review Dr Ekuru Aukot says the problem could be lack of the right leaders in institutions to implement the Constitution.

“We have an adorable Constitution that is emulated globally but we have just refused to transform from the past,” Ekuru says.

According to Senior Counsel Gibson Kamau Kuria, the National Assembly is rogue and responsible for the current constitutional quagmire. “We have a rogue Parliament that lacks advisers…it has passed unconstitutional laws and motions that has dragged us to the dark days,” Dr Kuria says.

Kuria argues that the National Assembly is also on a warpath with anyone deemed to oppose it.

“They (Parliament) threatened to send home the JSC. They also fought the Salaries and Remunerations Commission (SRC) for not increasing their pay and even passed dictatorial media laws,” Kuria says.

According to the former LSK Chairman, Parliament should wake up to the fact that it is not above the Constitution.

Kuria says that even the JSC cannot be spared the rod following the way it hounded Mrs Shollei out of office unheard and without following rules of natural justice – fair trial.

Shadow boxing

According to the defunct Kenya Anti-Corruption Commission (KACC) former director PLO Lumumba, shadow boxing between Parliament and Judiciary has dragged the country to near anarchy.

“JSC should not behave as if it is beyond reproach… Parliament must respect court orders in line with Article 165 of the Constitution,” Dr Lumumba says. According to Lumumba, disrespect to court orders in the wake of county governments may make Governors see themselves as demigods as they follow suit.

“We are also concerned with how judges sent home by the Judges and Magistrates Vetting Board (JMVB) are trooping to court and getting orders for reinstatement,” Lumumba says. According to Senior Counsel Paul Muite, the country may never awake from its current constitutional nightmare unless the rule of law reigns supreme.

“The President needs to be informed in writing that we are in a constitutional stalemate and the supreme law in crisis,” Mr Muite says.

According to Muite, Article Three of the Constitution says that not even the President is above the law.

“Parliament should tread with caution as we are no longer in the days when Constitution was never respected…it is now the supreme under Article Two,” Muite says.