CBK boss petition referred to CJ

Chief Justice Willy Mutunga’s office continues to flood with cases seeking constitutional interpretation after the latest application challenging the re-appointment of Njuguna Ndung’u as the Central Bank Governor was forwarded to him.

It marked a span of five days in which three cases have been referred to the CJ to constitute a three-bench judge.

First, it was a case challenging the appointment of Keriako Tobiko as Director of Public Prosecutions followed by a petition that stopped the swearing-in of five Supreme Court Judges.

High Court Judge Justice Daniel Musinga issued the directive Tuesday after allowing the Kenya Youth Parliament to withdraw an earlier chamber summons they had filed against the re-appointment of Prof Ndung’u and amend it to a petition.

The Kenya Youth Parliament alongside nine other individuals moved to court to nullify the re-appointment of Prof Ndung’u on grounds that it violated the Constitution.

Through lawyer Antony Oluoch, the group is seeking a declaratory order and constitutional interpretation as to whether all public appointments are subject to Articles 10, 73 and 232 of the Constitution.

They also want an interpretation as to whether the provisions of section 11 (2) of the Central Bank Act donates powers of re-appointment to the president without due regard to the Constitution.

“We are seeking an interpretation as to whether the re-appointment of Prof Ndung’u continues to violate the rights and fundamental freedoms of the people of Kenya and the petitioners as set out in Chapter 4 of the Bill of Rights,” said Mr Oluoch.

The petitioners argued that the re-appointment of Prof Ndung’u failed to take into account the national principles and values of inclusiveness, open participation, gender equity and equality as set out in the Constitution.

They want the court to declare that in making any appointments, the president is under a duty and obligation pursuant to his oath of office to defend and protect the Constitution.

They are seeking an injunction to permanently restrain Prof Ndung’u from carrying out any duties and functions of the office of the Central Bank Governor or drawing any remuneration and benefits until the provisions of the Constitution are complied with.

President Kibaki renewed Mr Ndung’u’s tenure at CBK on March 4 through a special Gazette Notice. In his decision, the President cited Section 11 (2) of the Central Bank of Kenya Act, which gives him the authority to appoint the CBK governor, deputy governor and non-executive directors.

Prof Ndung’u has filed a replying affidavit to the petition, saying the court cannot grant the conservatory orders because the application has been overtaken by events since the court cannot overturn what had already taken place.

He argued that the application contains many speculative suppositions without any factual basis or information and want the court to dismiss the case.

“These suppositions and misconstrued views of the law can only be properly adjudicated upon during the hearing of the substantive petition where the applicants have the opportunity to show the unconstitutionality in the appointment,” said Prof Ndung’u.

He defended his re-appointment as being in conformity with the Constitution and other laws, adding that granting the orders after the appointment had long taken effect will paralyse operations of the Central Bank.

He argued that the economic stability of the country can only be safeguarded through proper and an interrupted functioning of the office of the Governor of CBK.

Prof Ndung’u added that the orders being sought can only be granted if the court thinks that it is a matter that should be dispensed with at once under special circumstances.