Chief Justice David Maraga has accused Parliament of using delaying tactics to frustrate determination of his recommendations to dissolve the House over the gender rule dispute.
Through lawyer Ochieng Oduol, the CJ termed an application by the National Assembly and Senate to disqualify a bench of five judges appointed by his deputy Philomena Mwilu as misconceived and abuse of the court process.
According to Oduol, there is no way the CJ could have appointed the bench to hear the petitions where his advisory opinion to the president is being challenged.
“They are the ones who sued the CJ and still want him to appoint a bench to hear his case. Could they expect him to appoint a bench without being seen as biased? They should allow the case to proceed,” said Oduol.
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Parliament has through senior counsel Ahmednassir Abdullahi challenged the CJ’s decision to delegate his powers to Lady Justice Mwilu to appoint the five judges to hear the dispute.
Mwilu last month appointed Lady Justice Lydia Achode to preside over the bench with judges Pauline Nyamweya, George Odunga, James Makau and Anthony Ndungu.
But Ahmednassir argued that the DCJ had no such powers to appoint a bench and want the 10 cases challenging Parliament’s dissolution sent back to the CJ to appoint another bench.
“The CJ has no powers to delegate his constitutional duties to the DCJ to appoint a bench. Since he is conflicted in the matter, he should have instead allowed the presiding judge of the High Court to appoint the bench,” he said.
He added that any decision reached by the five judges would be unconstitutional for being appointed by a person who has no such powers.
His application was supported by the Attorney General through State counsel Emmanuel Bitta, who argued that it was suspicious how the file ended up before the DCJ to appoint the bench.
But the CJ argued that administration of the Judiciary was a function he shares with his deputy, the chief registrar of the Judiciary, the president of the Court of Appeal and the Principal judge of the High Court and that he can delegate to any of them to perform any function.
Oduol told the judges that the Judicial Service Act provides that the DCJ is answerable to the CJ in execution of the functions and duties assigned to her, therefore appointing the bench was within the law.
“The law contemplates a situation where there is a vacancy in the office of the CJ, the DCJ will act in the position for six months. It is therefore a fallacy that administrative powers of the CJ are non-delegatable to the DCJ,” said Oduol.
Justice Maraga kicked up a storm in September when he advised President Uhuru Kenyatta to dissolve Parliament for failing to enact the two-thirds gender principle.
But several petitioners, including the National Assembly, Senate and the AG challenged his decision, arguing that dissolving the House would create anxiety and confusion in the country.
The five judges directed that all parties file their submissions on the constitutionality of the bench before the hearing on December 17.