Bill to curb Judiciary is unconstitutional

The National assembly has passed a Bill seeking to stop the Judiciary from interfering with matters before the National Assembly, the Senate, and county assemblies.

What precipitated the Bill was MPs’ displeasure with instances in which courts had issued injunctions on matters that were being deliberated in Parliament.

In the early years of the 11th Parliament, the High Court issued an injunction to stop the Senate from handling the impeachment of Embu Governor Martin Wambora and later stopped the Justice and Legal Affairs Committee from deliberating on a petition on the members of the Judicial Service Commission.

In both instances, the National Assembly and the Senate felt short-changed as the High Court went ahead to reinstate Mr Wambora after his impeachment by the Senate and also stopped the tribunal set up to investigate JSC members.

The mover of the Bill, Mr Peter Kaluma, an opposition MP and a lawyer, insists that the Constitutional Amendment Bill is not meant to curtail the work of the Judiciary.

He opines that any judicial interference should be at the end of the legislative process.

He cites the independence of the various arms of government, otherwise known as “the doctrine of separation of powers” as the raison d’être for the Constitutional Amendment Bill, which will be forwarded to the Senate for deliberation since it affects members of the National Assembly, the Senate, and county assemblies.

In the event the Bill is approved, it will be delivered to the President for assent.

PROTECTING FUNDAMENTAL RIGHTS

One of the dangers of the Bill is that it prevents the ordinary person from going to court for redress regarding the actions of the Legislature when those actions threaten fundamental rights.

In Nazi Germany, the racial policies that advocated sterilisation and extermination of the people and races considered as inferior led to the worst atrocities in history.

These laws were legally passed by the Bundestag and in the legislators’ view, were based on sound eugenics science and were for the good of the fatherland.

It is for this reason that the Constitution vested the High Court with the jurisdiction to hear and determine applications for redress of a denial, violation, or infringement of or threat to a right or fundamental freedom in the Bill of Rights.

Since independence, there have been many instances when the Constitution has been butchered for untoward reasons.

It is through such amendments that the ruling Kanu was able to ban other political parties and turn Kenya into a one-party state, create a supreme presidency, abolish the Senate, and, extend the president’s power of mercy to cover electoral crimes to enable Jomo Kenyatta to save Paul Ngei, who had been found guilty of an electoral offence.

It is for these reasons that the drafters of the Constitution saw it fit to make it impossible for Parliament to amend certain aspects of the document.

They required such amendments to get the nod of the people of Kenya through a referendum.

Article 255 (g) and (h) expressly provide that a constitutional amendment warrants a referendum if it relates to the independence of the Judiciary, constitutional commissions and independent offices, and functions of Parliament.

The constitutional amendment in question clearly seeks to interfere with both the independence of the Judiciary and the functions of Parliament.

A plain reading of the Bill puts it under the realm of the article that requires that any amendment touching on the independence of the Judiciary and the functions of Parliament be subjected to a referendum.

In fact, one can argue that the Bill is unconstitutional because it is motivated by Parliament’s desire to remove itself from the checks and balances of the Judiciary.

Mr Kiprono is a senior programmes officer at Article 19 – Eastern Africa. [email protected] Twitter: @demasvox