Senate threatens to sever ties with Judiciary

The Senate has threatened to sever links with the Judiciary should the courts continue what they call “frustrating” their legislative role.

The bone of contention is the alleged use of court orders to interfere with the justice system, with the Senate arguing that the Judiciary was out to undermine its authority and depict the institution as toothless.

“I am extremely constrained, on behalf of the Senate, to bring to your attention the matter of conservatory or interim orders issued by the courts against the Senate that have negatively affected the legislative and oversight mandate of the Senate,” Mr Ethuro wrote.

INTERIM ORDERS

He cited the case of Embu Governor Martin Wambora whom the Senate impeached on May 13. The following day, the governor was issued with interim orders restraining the swearing-in of the Deputy Governor.

The Speaker faulted the courts for issuing the orders pending hearing and determination of the petition, yet the matter had been determined conclusively by the Senate.

Mr Ethuro also expressed outrage over the long duration the matter has taken in court. He observed that three months after his impeachment by the Senate, Mr Wambora is still in office.

“Is it possible that the Governor is using the court process to prolong his stay in office after his impeachment through a constitutional process?” Mr Ethuro asked.

An order stopping governors from appearing before the Senate Public Accounts and Investment Committee has also rubbed the Senate the wrong way.

And to forestall the fallout, Chief Justice Willy Mutunga has invited the Senate to a meeting with judges to discuss issues touching on the two institutions. The date and venue of the forum is yet to be determined.

“I believe that the workshop can discuss the vision of the Constitution bestowed upon the Senate. The judges will also be able to express their views,” Dr Mutunga said in his response to a protest letter from Senate Speaker Ekwee Ethuro.

He said the country is in a transition that, to many, is chaotic and messy, and observed that it will take the leadership of various institutions and organs to find a healthy and patriotic balance.

“I believe we can do that by protecting the mandates of the organs and institutions as much as we can through dialogue, consultation, interdependence and convening to talk to each other and share our frustrations,” said Dr Mutunga.

In his letter to the Chief Justice, Mr Ethuro had said that the Senate would stop cooperating with the courts should the Judiciary “continue disregarding the Constitution in determining cases emanating from Parliament”.

National Assembly Speaker Justin Muturi has also expressed doubts over the Judiciary’s commitment to uphold the rule of law when it comes to the principle of separation of powers between the two arms of government.

The two have maintained that Parliament cannot be gagged from performing its functions, and challenged courts to stick to interpreting matters that have been finalised by legislators, as opposed to “interfering” with the process.

Mr Mutunga urged the Senate never to think of ceasing to participate in the court process, saying that would affect the way courts run.

PUBLIC CONFIDENCE

“If you ever do that, given the position of your institution, the people’s confidence in the courts would suffer,” said Dr Mutunga.

Instead, he urged the Senate to participate, but appeal against orders in the higher courts.

The Chief Justice underscored the importance of devolution saying he recognised the role of the Senate as a critical pillar in ensuring equitable distribution of national resources.

Senate Majority Leader Prof Kithure Kindiki (Tharaka-Nithi, TNA) explained that just as Parliament cannot stop an ongoing court process, it cannot allow the courts to stop it from carrying out its core functions.

“It’s most inappropriate, illegal, unprocedural for courts to pretend they can stop proceedings of a House whether in the House or in committee sessions,” Prof Kindiki said.

Courts, he argued, are not a superior arm of government that supervises the Executive and the Legislature.

He said it was unfortunate the same Judiciary that says it can injunct Parliament is the one that erroneously said that any matter touching on judicial officers is not open to Parliamentary scrutiny.

There are also fears that those keen to maintain “the status quo” can use the courts to remain in office for as long as the case drags on.

Elgeyo-Marakwet Senator Kipchumba Murkomen observes that this “might make it tough to impeach a governor or president” because those with money can seek refuge in courts to delay the process of accountability.

ATTACKS 'UNNECESSARY'

But the Law Society of Kenya and the Commission for Implementation of the Constitution have come out in defence of the Judiciary, terming the attacks from Parliament unnecessary and not based on a thorough understanding of the Constitution.

LSK chairman Eric Mutua and his CIC counterpart Charles Nyachae have maintained that court orders cannot be ignored if the rule of law is to be upheld.

On Wednesday, during the Senate deliberations, Mr Murkomen said the Court of Appeal decided on the first impeachment of Mr Wambora and not the last one.

For his part, Senate Minority Leader Moses Wetang’ula said a court order should only be granted if the applicant stands to suffer irreparable loss in the event his wish is not granted.

“You cannot grant an injunction ex-parte unless the damages are irreparable,” said Wetang’ula.

He said governors don’t stand to suffer any irreparable damages if they appear before the committee to account for public funds entrusted to them as the chief executive officers of the counties.