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Parliament and Judiciary in supremacy war over legislation

31 October 2015, 16:05 Samuel Kisika

Mombasa - Supremacy battles between Parliament and Judiciary in legislation processes emerged at a Parliamentary lawyers forum where MPs accused the courts of overstepping their constitutional mandates.

The Senate Deputy Speaker Kembi Gitura, Mombasa Senator Hassan Omar and the Homa Bay Town MP,  Peter Kaluma said Judiciary was interfering with the law making process through "untimely intervention" while the High Court Judge, David Majanja defended the courts on grounds that the transformation process brought by the new Constitution is to blame.

Gitura, who is also the Murang'a Senator warned that the Judiciary's continued interference in legislation by misinterprating of separation of powers between the two government organs puts the country at the risk of "judicial dictatorship" in decision making.

"There should be no supremacy wars between organs of government because the Constitution is the most supreme law that defines boundaries of separation of powers. Judiciary can't pretend that it doesn't understand it's role in separation of powers and must wait until Parliament finishes the legislation process before it intervenes," said Gitura.

For instance, Gitura cited the High Court's decision of reinstating Embu Governor Martin Wambora despite the Senate confirming his impeachment and the Judiciary's move of challenging the validity of rulings made in the House by the Speaker, to justify the likelihood of judicial dictatorship in the nation.

"Senate impeached Wambora last year but the Judiciary without giving reasons reinstated him and Embu residents have been waiting to know whether they have a governor or not. Judiciary is imposing its will upon people by keeping a section of people in power, which is bad," warned Gitura.

However, Justice Majanja in defending the Judiciary from the legislators' criticism warned Parliament against judging what the courts were doing and said separation of powers among the three arms of government should not be viewed as total independance during this new Constitution dispensation.

"Dialogue is needed in between Parliament and Judiciary to settle their differences because the process of transformation brought by the new Constitution is point of contention between the two organs of government," said Majanja.

In defending the Judiciary from the Senate's blame of delaying in making rulings, particularly for Governor Wambora's impeachment case, Majanja said the problem is caused by case backlog in courts.

Homa Bay Town MP, Peter Kaluma said there is no problem for Judiciary to intervene laws made by Parliament but it must come in once the legislation process is over and there are questions raised either from the public, civil society or any other institution challenging the legality of enacted pieces of legislation.

"The issue with the courts' intervention in legislation process is timing. Judiciary must strictly adhere to principles of separation of powers and it should be reminded that Parliament represents the will of people and should be left to work independently," said Kaluma.

Hassan Omar said there both the Judiciary and Parliament need to work harmoniously and in the interest of the public rather than engaging in unwanted supremacy battles.

"The Judiciary has interventional role in interpreting the Constitution. There is no adversarial relationship but a checks and balances mode," said Omar.

The legislators and the High Court judge were speaking during the 3rd Africa Colloquium of Legal Counsel to Parliaments forum attended by parliamentary lawyers from 20 member States.

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