Judiciary must continue asserting its authority

In the week when the High Court nullified the tribunal to look into the suitability of members of the Judicial Service Commission, the court also returned to office Embu governor, Martin Wambora who had been removed from office.

The reasons for the decision in both cases revolved around a contest for supremacy between the Judiciary, on the one hand, and several political organs, including the National Assembly, the County Assembly of Embu, the Senate and the presidency, on the other hand.

Last week’s decisions have moved some way towards asserting the position of the Judiciary whose decisions had drawn derision from the political leadership, with the speakers of both the Senate and the National Assembly publicly declaring that their houses will not obey “stupid orders” issued by the courts.

The decision of the High Court in the case arising from the removal proceedings against members of the JSC was handed down by a bench of five judges. Normally one judge is sufficient in a case before the High Court, although in important or complex cases, the court sits in benches of three.

The fact that a five-judge bench was set up to deal with this matter is a reflection of the seriousness with which the High Court intended its decision to be viewed.

The five judges held that the oversight powers claimed by the Legal Affairs Committee of the National Assembly did not extend to giving the committee the right to supervise the JSC.

In their view, the oversight was limited only to the management the budgetary and administrative issues, as part of the oversight that the committee has over constitutional commissions. In the Wambora case, the High Court sat in a bench of three, also underlying the gravity of the case.

The saga that culminated in removal proceedings against members of the JSC had commenced with removal proceedings against the former Chief Registrar of the Judiciary, Mrs Gladys Shollei, in whose case the Legal Affairs Committee of the National Assembly intervened, eventually summoning the Chief Justice to its own proceedings.

When Chief Justice Mutunga sent a lawyer to appear for him before the proceedings of the committee, he was not given a hearing and the committee went on to recommend the removal of six members of the JSC.

In response, the JSC brought proceedings before the High Court, seeking to stop the proceedings of the Committee. The committee, however, went on with its proceedings which ended in a report, endorsed by the National Assembly, for the appointment of a tribunal to look into the suitability of six members of the JSC.

The initial problem resulting from the contestation for supremacy between the Judiciary and the political organs was compounded by the choice of members of the tribunal to the six JSC members.

President Uhuru Kenyatta appointed a tribunal, led by Justice Aaron Ringera, and made up of people regarded as being close to his political corner, including political activist Jennifer Shamalla, whose organisation, the Conservative Forum, had made an unsuccessful application in the High Court seeking to prevent the President and his deputy from traveling to the Hague to attend their trials before the International Criminal Court.

Any legitimacy that the tribunal should have been viewed with was immediately undermined by the composition of its members, many of whom were viewed as being too close to the President to act independently.

So should we expect next? In relation to Mr Wambora, the High Court orders do not bar the County Assembly of Embu from commencing fresh removal proceedings against him. Of course, Mr Wambora can again rush to the High Court if fresh removal proceedings are brought. Indeed, the political noise from Embu is that such proceedings may be in contemplation.

In the case of the JSC removal proceedings, the factual circumstances have changed with the retirement of Dr Christine Mango and Mr Ahmednasir Abdulahi, two of the six members that had been targeted for removal.

In many quarters, Mr Abdulahi was seen as a principal target of the removal proceedings and with him out of the JSC by other means, there may be much less appetite to revive the removal proceedings.

While the High Court decision may be viewed as a put-down for the political organs, it provides the President with a face-saving way of getting out of the Ringera-led tribunal whose membership would have been unacceptable if this process had gone ahead.

In the event that the political leadership commences the removal proceedings afresh, the President will have the latitude to constitute a tribunal whose members will not be viewed as being too close to the political leadership.

These two decisions leave unaddressed, the original question of whether and when the Judiciary is entitled to intervene in the affairs of other constitutional organs, principally those of the legislature.

There is a well-founded grievance on the part of the legislature, that the courts have at times overreached themselves and made decisions that are both meddle-some and ill-informed.

However, on the authority of last week’s decisions, all court orders, even the less enlightened ones, must be obeyed first, and any action taken in disregard of such orders is a nullity.

With these two judgements, the Judiciary has placed on its own shoulders the burden of ensuring that orders that it makes in relation to the other organs of the state are viewed as just, and reasonably capable of obedience without resorting to the kind of rebellion that the two speakers had announced.

This is a heavy burden, and only time will tell how it will be carried.

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