A constitutional crisis is looming following President Uhuru Kenyatta’s suspension of six members of the Judicial Service Commission despite a court order.
The president suspended Commissioners Ahmednassir Abdullahi, Rev Dr Samuel Kobia, Justice Mohammed Warsame, Prof Christine Mango, Chief Magistrate Emily Ominde and Ms Florence Mwangangi through a Gazette Notice and appointed a tribunal to investigate their conduct.
Retired Judge Justice Aaron Ringera will chair the four-member tribunal with lawyer Ambrose Weda, Jennifer Shamalla and Mutua Kitaka will be members.
But the President did not name a lead counsel to present evidence to the commission or a secretary to act as chief executive officer to set up the offices and venue for the hearings.
The Judicial Service Commission now has only five members and this is likely to cripple its work for lack of quorum.
At least six members are required at any meeting while three are needed to sit in any sub-committee.
The decision drew immediate reaction from the Law Society of Kenya, with chairman Eric Mutua saying that this will open fresh battle lines between the executive and the judiciary and that it is likely to be inconsequential unless the court order is lifted.
“The tribunal may end up not sitting because none of them will like to be cited for contempt of court. The commission will not sit back; they will not appear before that tribunal. In fact it is easier for them to deal with the tribunal than parliament; they will just go and wave the court order at the chairman and nothing will proceed,” said Mr Mutua.
According to Mr Mutua, the suspension of the six sets a bad precedent by the President who should uphold the rule of law.
“He should have pursued reconciliation and called the Chief Justice and Speaker of the House to bring some sense to the two arms. It is like he made a wise political decision to appease parliament because he needs the MPs more than he needs the judiciary,” said Mr Mutua.
Senior Counsel Paul Muite who is the Judicial Service Commission lawyer in their dispute with the National Assembly over the suspension of the six commissioners, said he was surprised at the president’s action on parliament’s recommendation.
“Article 3 of the constitution bounds the president to respect, uphold and defend the constitution and the rule of law. He has gone against the provisions of the rules he swore to defend,” said Mr Muite. He added that he will consult the judicial commission for instruction on what to do next after the president appointed the tribunal.
Siaya Senator James Orengo termed the President’s move as “unfortunate and tragic”, saying it undermined the independence of the judiciary.
“The grounds on which Parliament’s recommendation to ask the president to form a tribunal to investigate commission do not meet the threshold set out in the constitution. I do not think that the grounds listed amount to serious breach of the constitution, gross misconduct, incompetence, physical or mental incapacity or bankruptcy. By his actions, the president has reversed the gains Kenya has made towards entrenching the independence of the judiciary,” Mr Orengo said.
The president in his statement however said that he had met both the chief justice, Dr Willy Mutunga and Speaker Justin Muturi, to discuss the issue before he arrived at the conclusion to form the tribunal.
“The two -week hiatus between the receipt of the Petition and the formation of the Tribunal was for me to understand and mediate the perceived conflict between the National Assembly and the Judiciary. It is for this reason that I called for the tripartite meeting with the CJ and the Speaker of the National Assembly. I have met both of them and I am happy to state that the three arms of Government are working in harmony within the confines of the Constitution,” said Mr Kenyatta.
The president added that although the judiciary had made great strides in its reform agenda, it has its challenges and the recent investigations into the conduct of the JSC members is a sign of bright future for the judiciary.
“The allegations of financial interference and obstruction of justice are serious in nature and therefore require investigations by an independent and impartial tribunal,” said the president.
The tribunal’s mandate will include investigating the allegations raised against the commissioners which were the subject of a petition before the National Assembly and which formed the basis for their suspension.
In the event that the tribunal proves the allegations, they will recommend to the president to sack the six commissioners.
Justice George Odunga had stopped the removal of the six members in a dispute that has shaped the battle for separation of powers between the Judiciary and the National Assembly.
Parliament has however refused to enter appearance in the suit in a move seen as a response to refusal by judiciary commissioners to appear before them when they were investigating their fall-out with former Chief Registrar Gladys Shollei.