Uhuru-Judiciary row to test the doctrine of separation of powers

By Dismas Mokua

High Court judge George Odunga issued court orders on November 30 stopping the National Assembly from debating the petition filed by Nicholas Mugambi seeking the removal of six Judicial Service Commissioners (JSC).

This order that some analysis found blurred was not obeyed by the National Assembly. The National Assembly debated and adopted a Departmental Committee on Justice and Constitutional Affairs resolution and forwarded it to the President.

President Uhuru Kenyatta, upon receipt and reflection, as he said, went ahead and appointed a tribunal to investigate the six. The JSC was in court again complaining that the National Assembly had acted unconstitutionally and in disregard of a court order. The court order barred the National Assembly from debating and presenting its petition to the President. This time round, JSC had very specific prayers. JSC asked the court to stop the tribunal from beginning work and requested that the commissioners go on working.

Probably feeling aggrieved, Justice Odunga promptly gave orders blocking the tribunal from commencing its probe. He also directed that the six commissioners remain in office and carry on with their duties pending the determination of the case filed by JSC.  The actions by the President Kenyatta and Justice Odunga demand careful reflection in the space of precedent setting under a new Constitution. Their actions will unveil the philosophy behind the doctrine of separation of powers in the context of the Executive, Judiciary and Legislature.

Analysts and legal scholars will be looking at the ratio decidendi of President Kenyatta and Justice Odunga with great interest.

In issuing the orders stopping the National Assembly from debating and forming a view on the Mugambi petition, several questions arise. Was it possible to enforce the orders as issued by Justice Odunga or did he act in vain. The second pertinent question is whether or not the petition had merit in the first instance or did the Jubilee side deploy the tyranny of numbers strategy to push forth a petition that probably would not stand the basic test of merit and put the President in a tight corner.

It is indeed debatable if it was possible to enforce the orders. Is it possible to issue orders to the 449 Members of Parliament accompanied by a penal notice on the consequences of debating the Motion?

Would it have been prudent if the orders were directed to specific persons in the National Assembly like the Speaker, Clerk or Members of the House Business Committee?

And when discussing the independence of the three arms of the Government, is it possible for the Judiciary to stop the National Assembly from transacting its core business, which arguably includes oversight of all public institutions in Kenya. Or in discussing and presenting a petition to the President, did the National Assembly act beyond its powers or ultra vires as legal scholars would say? As if the questions aren’t sufficient, did President Kenyatta need to take note of the fact that the High Court had issued orders to stop debate or would he act on the petition as received at State House? And can State House tame independent constitutional commissions that are not serving the public good?

There is no doubt that President Kenyatta acted within the law in two respects. He had no option but to appoint the tribunal as demanded and expected by the Constitution.

However, the President had the option not to suspend the JSC. This point, however, raises fundamental arguments in law and logic. That suspension of the JSC members presupposes them as guilty and all are innocent till proven guilty.

However, the President can be faulted in the composition of the tribunal. While meeting the legal requirements, the tribunal enjoys perception liability. Their past involvement with TNA casts doubts in their ability to act as impartial arbitrators because they have had personal and institutional tiffs with the JSC as corporate and individual members. However, whichever way the situation unfolds, the Constitution is the richer because we will have solid precedents because this case will end at the Supreme Court.

The writer is a communications counsel who analyses politics and economics