Court blocks Shakahola deaths inquiry until Azimio case is heard

High Court Judge Lawrence Mugambi noted it would be difficult to recoup public money if the commission is allowed to start sitting. [iStockphoto]

The Commission of Inquiry into the Shakahola deaths will not sit until a case filed by Azimio is heard and determined.

This is after High Court Judge Lawrence Mugambi suspended the commission appointed by President William Ruto after finding that the opposition had raised heavy issues on separation of powers and usurping powers granted to the judiciary, Director of Public Prosecutions (DPP) and independent commissions.

The judge noted that Kenya National Commission on Human Rights had already raised concerns that the Justice Jessie Lesiit-led commission would be doing its work, which includes investigating violations of human rights.

Justice Mugambi was of the view that if the commission is allowed to start sitting, it would be difficult to recoup public money. On the flip side, he said, if in the end, the court finds that Dr Ruto was right, then the commission could use the already collected evidence to determine who is to blame for the massive deaths.

"A situation where a commission is openly wailing that with a stroke of a pen, its constitutional mandate has been taken away and assumed by an appointed entity is by no means a flippant grievance," he said.

"Further, it should prick the conscience of the court when a citizen or a group of citizen stream to the court to defend judicial independence. The situation that has caused such apprehension should not be treated dismissively. The petitioner has reasonably demonstrated the prejudice to be suffered," said Judge Mugambi.

In the case, the Azimio coalition led by Raila Odinga, took the Shakahola battle to President Ruto's doorstep, arguing that he has grabbed powers of among others the DPP, judiciary, and parliament.

The coalition's lawyer Paul Mwangi argued that the Head of State has hijacked the criminal justice system without the power to do so.

According to Mwangi, it is illegal for Dr Ruto to appoint judges without reference to Chief Justice (CJ) Martha Koome. He says the lead lawyer should be under the DPP.

Mwangi argued that the judicial inquiry is conducting a similar role, as the court as the same could be done in an inquest. "The action in constituting the Commission of Inquiry is interfering with the independence of the judiciary under article 161 of the Constitution of Kenya which provides that in the exercise of judicial authority, the Judiciary shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority," argued Mwangi.

Ruto tasked the commission to unearth the truth behind the activities of the Paul Mackenzie-led Good News International Church. The commission is chaired by Justice Lesiit and features Lady Justice (Rtd) Mary Kasango, politician Eric Gumbo, Bishop Catherine Mutua, Jonathan Lodompui, Frank Njenga, Dr Wanyama Musiambu and Albert Musasia.

Lawyer Kioko Kilukumi is the lead counsel assisted, by Vivian Nyambeki and Bahati Mwamuye. The joint Secretaries are Oliver Kipchumba and Rachel Maina. Mr Odinga listed at least 13 prayers, among them to declare the appointments as unconstitutional and disband the team.