A new round of turbulence is expected in the relations between the Judiciary under Chief Justice David Maraga and the political establishment after the High Court issued two separate orders halting removal proceedings against Auditor-General Edward Ouko, which have been going on before the finance committee of the National Assembly.
The first case had been filed by activist Okiya Omtata where Justice Enock Chacha Mwita issued the restraining order, while Mr Ouko himself filed the second case before Justice George Odunga.
The finance committee adjourned its proceedings and referred the matter back to the Speaker of the assembly. Within an hour after the adjournment, the matter was already on the floor of the assembly where, after a brief debate, the Speaker reserved his ruling until Thursday last week.
However, the Speaker did not deliver his ruling as promised and this is now expected on Tuesday. During the debate the Speaker provided sufficient indication that his ruling is likely to be that the finance committee should defy the court and proceed with the hearing of the petition.
The Judiciary and the Legislature have previously been engaged in supremacy battles. In April 2014, the High Court nullified President Uhuru Kenyatta’s appointment of a tribunal to look into the suitability of six members of the Judicial Service Commission to remain in office. In the same week, it reversed a Senate decision to impeach Embu Governor Martin Wambora.
The supremacy contest was resolved when two JSC members, including Ahmednasir Abdullahi, who was seen as the real target of the removal proceedings, retired following the expiry of his term in office.
This rendered the proceedings superfluous. Mr Abdullahi’s retirement removed the political motivation to go on with the tribunal, and the idea was soon abandoned. On its part, the Senate eventually swallowed humble pie and, as a result, Wambora is still in office today.
The political establishment has hardly bothered to conceal the fact that it wants Mr Ouko out of office. After President Kenyatta publicly upbraided him in October 2016 for his apparent insistence on going ahead with an investigation of the Eurobond scandal, an investigation the President seemed to consider unnecessary, Mr Ouko then escaped prosecution after the public prosecutions director, Mr Keriako Tobiko, overruled a recommendation of the Ethics and Anti-Corruption Commission that the auditor-general should be prosecuted, together with a number of senior officials working in his office.
In overruling the anti-corruption commission, Mr Tobiko complained that unnamed sinister persons had put him under political pressure to prosecute Ouko.
The anti-graft agency’s whose recommendation followed a hitherto dormant investigation, which had suddenly been fast-tracked apparently in the hope that it would nail the auditor-general.
It would seem that, just like in 2014 when the Judiciary was the only impediment against a determined effort to remove members of the commission from office, it has, once again, become an impediment to political designs to remove Mr Ouko from office.
In 2014, a political maverick, Willy Mutunga, was the Chief Justice. His position as the leader of the Judiciary was both a complicating as well as a facilitating factor in the relationship with other organs of the State. While Mutunga enjoyed a high public profile and a reputation of fierce independence, he was also often openly critical of the government and politicians in general and personally became a target of their attacks.
An element of the poor relations with the other arms of State was attributable to the dislike that the political leadership had for Mutunga.
Justice Maraga is a different kind of person altogether. The soft-spoken and genial Chief Justice received universal support during his confirmation hearing in the National Assembly, and now seems to enjoy significant confidence from the establishment.
However, the style of the new Chief Justice is still emerging and it remains unclear how he would handle major controversy. If the Speaker rules that the committee should ignore the court order, the political establishment is likely to defend this position and may even attack the two judges. Assembly Majority Leader Aden Duale has scurrilously attacked Justice Odunga.
In such an event, Justice Maraga will be expected to protect the judges and this may strain relations with the establishment.
While the Senate has shown a willingness to abide by court orders, Assembly Speaker Justin Muturi has pursued a line that courts of law cannot dictate to the Legislature, and has previously declared he would not obey “stupid” orders.
This fact makes it more than likely that he will, once again, decide that the committee should go on with its work, irrespective of the court order. While the National Assembly insists that constitutional autonomy prevents the courts from interfering with their proceedings, such autonomy only exists when Assembly exercises legislative functions.
However, this is not the only capacity in which the Assembly functions. The Assembly is also an organ in the removal procedures established by the Constitution. A committee of the Assembly must examine whether a complaint seeking the removal of the auditor-general has merit.
This is exactly what the finance committee is currently doing. However, both the committee and the Speaker have been accused lacking fairness when exercising this power. How can the Speaker ignore a court that also questions his own personal conduct and expect to remain a credible assembly leader?
When sitting as an organ in removal proceedings, parliament and its committees, acts as a quasi-judicial body. All quasi-judicial bodies are subject to the review powers of the High Court. In relation to Mr Ouko, it is those powers that the High Court has twice invoked.