The legality of the anti-graft secretariat to assume the roles
previously played by the commissioners will be escalated to the Supreme
Court with the constitutional implementation watchdog seeking an
interpretation of the Constitution.
In a communication
to Attorney-General Githu Muigai, Commission for the Implementation of
the Constitution (CIC) chairman Charles Nyachae said they were intending
to move to the Supreme Court to seek an advisory opinion as provided
for under Article 163(6) of the Constitution.
As per Rule 40(c) of the Supreme Court Rules, Prof Muigai is required to give his opinion before CIC can file its case.
“We
note that critical state organs and offices including your office, the
Office of the Director of Public Prosecutions and the Departmental
Committee on Justice and Legal Affairs have taken positions that appear
to be inconsistent with the proper interpretation of the Constitution on
this matter,” Mr Nyachae’s letter to Prof Muigai states.
“In
particular we are concerned by positions taken by various offices that
indicate that operations of the EACC (Ethics and Anti-Corruption
Commission) including its function of recommending cases for prosecution
to the DPP continue despite the absence of members of the commission.”
CIC had last week warned that the current composition of EACC does not allow it to function fully.
This
was after President Uhuru Kenyatta suspended from office the two
remaining commissioners, chairman Mumo Matemu and Irene Keino, on
recommendation of the National Assembly.
IN 60 DAYS
IN 60 DAYS
A
tribunal appointed by President Kenyatta to investigate the conduct of
the two commissioners was sworn in on Thursday and has said it was
looking to conclude its work in 60 days. The tribunal is chaired by
Justice (rtd) Jonathan Bowen Havelock who will work with former
commissioner with the Truth Justice and Reconciliation Commission
Margaret Shava, Mr Issa Mansur Muathe and Ms Juster Nkoroi who are
members of the tribunal.
Ms Keino has since resigned
“to spare my family the anguish of a judicial process that will cause
them unimaginable pain.” That leaves Mr Matemu as the only one whose
conduct the tribunal would be investigating after Prof Jane Onsongo
resigned before the National Assembly made its recommendations allegedly
after being coerced to do so by senior State House officials.
“I
am unable to comment at this stage. Today (Thursday) was only the
swearing-in, no more,” Justice Havelock told Sunday Nation on Thursday.
The
CIC believes that by virtue of Article 250(1) of the Constitution and
Sections 4 and 11 of the EACC Act, whereas the secretariat can carry on
with the technical work of the commission, no formal decision of the
commission can take place without the commissioners in place.
In
CIC’s view, the secretariat cannot submit the investigation files to
the Director of Public Prosecution without the commissioners.
Prof
Muigai, Mr Tobiko and EACC secretary Halakhe Waqo have, however,
differed, arguing that EACC is a body corporate with perpetual
succession, and the lack of commissioners cannot stop it from doing its
work, including forwarding the files to the DPP.
On the basis of that standoff, CIC now wants the Supreme Court to interpret the Constitution and advise on the way forward.
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