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Suspended JSC members move to court seeking to bar Aaron Ringera tibunal probe

NAIROBI
By KURIAN MUSA | December 3rd 2013
Kenya Judicial Staff Association officials Sango Maewa (right) and Allan Ojuki during a press conference at Milimani Law Courts Monday, where they questioned the formation of a tribunal to investigate six JSC commissioners.  [PHOTOS: GEORGE MULALA/STANDARD]

By KURIAN MUSA

NAIROBI, KENYA: The Judicial Service Commission has challenged in court President Uhuru Kenyatta’s decision to suspend six commissioners and establish a tribunal to investigate their conduct.

The JSC chaired by Chief Justice Willy Mutunga filed the application under a certificate of urgency before Justice George Odunga seeking to block the tribunal.

The commission wants the judge to grant an injunction stopping members of the tribunal led by Justice (Rtd) Aaron Gitonga Ringera from being sworn in and commencing their work to investigate the six JSC members pending full hearing of the case.

Lawyer Paul Muite made the application on behalf of JSC at the High Court in Nairobi Monday.

This emerged as the war of words between CORD and Jubilee raged on. On Monday, 10 Jubilee senators defended President Kenyatta’s action, saying he had acted within the law. Led by Senate Majority Leader

Kithure Kindiki, the Jubilee MPs told off the opposition over claims the Government was cracking down on dissent. On October 30, Justice Odunga had stopped the Parliamentary Committee on Justice and Legal Affairs from further proceedings on a petition filed by Nicholas Mugambi seeking the removal of the six commissioners.

Muite told the court that despite being served with the orders, the committee defied the court and presented its report on October 31 to the National Assembly for adoption.

The application before the Judicial Review, Constitutional and Human Rights Court seeks leave to enjoin Justice (Rtd) Ring’era, Jeniffer Shamallah, Ambrose Otieno Weda and Mutua Kilaka as respondents in the petition. The four were appointed to the tribunal that will decide the fate of the Mutunga six. “It is under this certificate of urgency, that we seek a stay of the Special Gazette Notice No. 15094 appointing the 3rd to 6th respondents of a Tribunal to investigate the conduct of six commissioners of the Judicial Service Commission,” said Senior counsel Muite.

They also sought that pending the hearing and determination of the petition, the suspension of Justice Warsame, Prof Christine Mango, Dr Samuel Kobia, Ms Emily Ominde, Mr Ahmednasir Abdullahi and Mrs Florence Mwangangi as JSC commissioners be frozen.

TRIBUNAL

Muite argued that the Attorney General Githu Muigai is a member of the JSC and ought to have advised the President accordingly that there was a court order that was defied by Parliament, and therefore he should not have formed the tribunal.

“The orders were served to the speaker of the National Assembly and the Attorney General who is the legal advisor of the Government, but in defiance of court orders the committee proceeded to hear the petition and forwarded the report to the August house,” Muite said.

The court on November 6 issued further orders restraining the National Assembly from deliberating on the report, but in defiance, the Speaker allowed the debate and MPs subsequently adopted the report that recommended the president form a tribunal.

“My Lord, we are in a short time going to come to this court with an application of contempt of court by the Speaker of the National Assembly,” Muite said.

Justice Odunga will Tuesday determine in light of the November 6 order, whether the six JSC commissioners will remain in office.

PUBLIC CONFIDENCE

“There is a misconception of the law, Article 251 of the Constitution, for one to argue that the president had no option but to set up a tribunal,” Muite said.

He added that if Uhuru had better advice he ought to have known he couldn’t form a legal tribunal.

Muite said the JSC is the very heart of administration of justice and that “if orders issued to protect JSC are defied then the public confidence of the common man would reduce”.

“What confidence would Wanjiku or Atieno have?” he asked.

 The lawyer said the matter before the court was beyond petitioner and respondent.

“It is about whether this country will be governed in accordance with the rule of law.”

SUFFICIENT

He asked the court to grant the orders sought as a way of safeguarding the Judiciary in its administration of justice.

Meanwhile, the Kenya Judicial Staff Association has protested the suspension of the six JSC commissioners.

The Association said activities in the Judiciary would stall if quorum were not sufficient to implement its work.

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