JSC fights to block Ringera probe team

Chief Justice Willy Mutunga (centre), flanked by JSC members, addresses the media at the Supreme Court in Nairobi on October 18, 2013. The Judiciary opened a new battle front with the President Monday when it filed a court case seeking to revoke his decision suspending six members of the Judicial Service Commission (JSC). PHOTO/FILE  NATION

In Summary

• Those suspended are Mr Ahmednasir Abdullahi, the Rev Dr Samuel Kobia, Mr Justice Mohammed Warsame, Prof Christine Mango, Chief Magistrate Emily Ominde and Ms Florence Mwangangi.
• The petition was supported by an affidavit by JSC registrar Wilfrida Mokaya who said that despite two court orders barring the removal of the six commissioners, the President chose to ignore the rule of law in a manner that could cripple JSC operations unless it is challenged.
• Mr Kenyatta defended his decision, saying he acted according to his constitutional mandate after receiving Parliament’s recommendation. He also said the tribunal will not interfere with the independent operations of the Judiciary.

By PAUL OGEMBA
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The Judiciary opened a new battle front with the President Monday when it filed a court case seeking to revoke his decision suspending six members of the Judicial Service Commission (JSC).

The lawyer for the commission, Mr Paul Muite, has also threatened to sue the Speaker of the National Assembly, Mr Justin Muturi, for contempt of court.

Monday, he accused Mr Muturi of ignoring a court order which barred MPs from debating a report which had recommended that the six officials be suspended.

He said Mr Muturi allowed MPs to debate the report in disregard of the order. Parliament later passed a resolution asking the President to suspend the six and set up a tribunal to investigate their conduct.

Those suspended are Mr Ahmednasir Abdullahi, the Rev Dr Samuel Kobia, Mr Justice Mohammed Warsame, Prof Christine Mango, Chief Magistrate Emily Ominde and Ms Florence Mwangangi.

(READ: President Kenyatta suspends 6 JSC members)

While announcing their suspension in a special Gazette notice last Friday, President Uhuru Kenyatta also appointed retired judge Aaron Ringera to chair the tribunal that will investigate the officials who are accused of impropriety and attempts to block investigations into a Sh80 million fraud case involving the Judiciary.

But Monday, Mr Muite asked the court to declare the appointment of a tribunal illegal. He argued that the tribunal was unconstitutional and would trigger a constitutional crisis unless the court revokes President Kenyatta’s special Gazette notice.

Judge George Odunga, sitting in Nairobi, certified the petition as urgent. Tuesday, he will make a ruling on whether to freeze the special Gazette notice.

Mr Muite had also asked the judge to stop the swearing–in of the four members of the tribunal.

If this is not done, Chief Justice Willy Mutunga, also the chairman of the JSC, will be required by law to swear in the members of the tribunal. That means he will be setting the stage for members of his own commission to be investigated.

The suit is set to open a new legal battle front between the Judiciary, the Executive and the National Assembly over separation of powers, respect for the rule of law and disregard of court orders.

“The Speaker and the Attorney General have not bothered to respond to the JSC petition; the issue of contempt is still alive and we will in due course file contempt of court proceedings against them,” said Mr Muite.

He also accused Attorney General Githu Muigai of failing to advice the President on the dispute.

“JSC legitimately expected the AG... to appropriately advice the President that a resolution of Parliament asking him to appoint a tribunal was in defiance of a court order,” said Mr Muite.

He also argued that the President misinterpreted Article 251 of the Constitution when he appointed Mr Ringera, Mr Ambrose Weda, Ms Jennifer Shamalla and Mr Mutua Kilaka to investigate the conduct of six commissioners.

“Having been duly served with the court orders through the AG, the President was under constitutional duty to return the petition to Parliament. His actions offended the spirit of the Constitution,” said Muite. According to him, Mr Kenyatta’s decision allowed MPs to interfere with the JSC.

“This dispute goes beyond JSC and Parliament. It is a question of whether a country is to be governed without the rule of law,” Mr Muite said and challenged the court to rise to the occasion and safeguard the law.

He also asked the court to put on hold the suspension of Mr Abdullahi and the other five commissioners until the suit is heard and determined.

The JSC also asked to be allowed to enjoin Mr Ringera and the other tribunal members as respondents in the case.
 

The petition was supported by an affidavit by JSC registrar Wilfrida Mokaya who said that despite two court orders barring the removal of the six commissioners, the President chose to ignore the rule of law in a manner that could cripple JSC operations unless it is challenged.

“Parliament’s resolution was in the first place null and void since there could be no valid report that could be forwarded to the President. The President, therefore, had no constitutional basis to suspend the six commissioners,” Ms Mokaya said.

She added that the President’s move to appoint the tribunal should be quashed to enhance public confidence in the administration of justice which she said was under threat.

President Kenyatta’s decision to suspend the six commissioners left JSC with only five members who cannot discharge its duties because the JSC Act requires that at least six members be present at any given meeting while three are required to sit in any JSC sub-committee.

Mr Kenyatta defended his decision, saying he acted according to his constitutional mandate after receiving Parliament’s recommendation. He also said the tribunal will not interfere with the independent operations of the Judiciary.