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Ruling on JSC puts Judiciary, Executive on war path

16 April 2014, 13:11 William Korir

Nairobi - The decision by the High Court to declare president Uhuru Kenyatta's decision to probe six Judiciary Service Commision has put the judiciary and executive on a collision course.

A five judge bench yesterday told the National Assembly to back off from micromanaging the Judicial Service Commission’s decisions.

While upholding JSC’s independence in the four hour long judgment, Judges Richard Mwongo, Helen Omondi, Christine Meoli, Mumbi Ngugi and Hillary Chemitei ruled that the commission is neither a subject of control of the National Assembly nor under Parliament’s supervision.

And in a bid to end what seemed to have been the start of a reigning supremacy battle between the judiciary, legislature and the executive, the judges recommended the formation of a committee in charge of all other committees to conduct an oversight role and facilitate amicable resolution and mutual respect in all the state arms in future.

“We declare that JSC as a constitutional commission is not subject to the control of the National Assembly or any of its departmental Committees, through the Justice and legal Committee, the National Assembly  is not entitled to supervise and sit on appeal on the decisions of the JSC when it is discharging its lawful mandate,” ruled the judges.

It is the Principal Judge Mwongo who pointed out that the recommendation of the formation of an oversight committee as a measure to curbing supremacy battles between the state organs.

“The constitution has brought fundamental changes in the governance structure of our country including the introduction of independent commissions and offices; their number and complexity of overseeing these institutions’ functions, means that there’s need for Parliament to be innovative in carrying out oversight role, we recommend the establishment of a committee within parliament dedicated to the oversight role,” Justice Mwongo said.

The bench quashed a gazette notice on the Presidential appointment of Justice Aaron Ringera, Jeniffer Shamallah, Ambrose Weda and Mutua Kilaka as members of a tribunal set up to investigate six suspended judicial commissioners.

Whilst the four were  barred from resuming office the order by High Court judge George Odunga  earlier issued  to stop the suspension of JSC Commissioners Ahmednasir Abdullahi, Justice Mohammed Warsame, Professor Christine Mango, Florence Mwangangi, Emily Ominde and Reverend Samuel Kobia was lifted.

According to Justice Odunga, the suspension of the said six judicial officers contravened constitutional provisions and put them at the sufferance of the Executive or at the whims of the Legislature then the independence of the Judiciary was at risk.

Despite being served with the order, MPs went ahead to debate and adopted the petition filed by Nicholas Mugambi before sending their recommendation to the President Uhuru Kenyatta to institute a tribunal to investigate the six commissioners.

It is then that JSC had moved to court to challenge the suspension of the Commissioners and the formation of a tribunal to probe their conduct.

JSC argued that there was no constitutional basis for their suspension or appointment of the tribunal and that the National Assembly defiantly resolved to disobey court orders barring their suspension.

The Attorney General and Speaker of the National Assembly who did not respond to the suit were served with two court orders stopping the departmental committee on Justice and Legal Affairs from deliberating the said petition.

The judges also unilaterally ruled that the petition presented before the Justice and Legal Committee to punish members of the JSC was an encroachment on the independence of the JSC as it was brought forward with an aim of disbanding and crippling JSC’s operations.

They said judicial intervention is not a violation of the doctrine of the separation of powers and that the president can be bound by court orders arising from proceedings which he is not a party.

They added that parliament’s oversight powers do not amount to the right to subjugate, micromanage, control or direct the JSC or the financial and administrative independence of commissions.

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