Since making his remarks about the president on the eve of 2019’s new year, the Gatundu South member of parliament has been making headlines over various issues. Just recently, he threatened to resign but denied the claims later. After Jubilee Party announcing that it wasn’t fielding a candidate for the upcoming Embakasi South by-elections, he yesterday declared his support for Julius Mawathe, a wiper party candidate.
The lawmaker has now launched his attacks on the Judiciary. He claims he is deeply disturbed that the Hon Judge Chacha Mwita has abrogated to himself the power to appoint Justice Warsame as a JSC commissioner.
According to Kuria, this is state capture by the Judiciary and a serious affront to the rule of law and separation of powers. It is an issue that Justice David Kenani Maraga has to address if he expects the rest of us to respect the Judiciary.
Through an article he wrote on The Star, Kuria says one of Kenya’s greatest achievements in post-independence was the passage of the 2010 Constitution.
Part of article read, “Among many innovative provisions, the Constitution defined several principles which would bind all State organs and the citizenry in their interactions.”
“Principal amongst the values of good governance was the concept of separation of powers and the rule of law.”
“Pursuant to this principle, the three arms of government, the Executive, the Legislature and the Judiciary were all allocated areas of exclusive competence, even as they acted as checks and balances on each other.”
“Another critical underlying tenet in the constitution is the principle, articulated in Article 2 and 3, that the Constitution is supreme, and that all persons and institutions, including the Judiciary, are subordinate to, subject to, and required to uphold the Constitution.”
Article 2(2) supplements this supremacy of the Constitution doctrine by providing that any act done in violation of the Constitution by any party is invalid.
While the focus on unconstitutional acts has traditionally been directed at the Executive and the Legislature, it is clear from recent decisions that the Judiciary is now treading the path of unconstitutional actions.
Nowhere is this clearer than in the recent decision made by Justice Chacha Mwita in High Court Petition No 307 of 2018 on the appointment of Justice Mohamed Warsame to the Judicial Service Commission.
The JSC which is the body that oversees the judiciary is established in accordance with Article 171 and 250 of the Constitution.
Some details of the appointment process of members are set out in the Judicial Service Act.
While there have been differing opinions and court clarifications on the process prescribed by the Act, there are two issues on which the Constitution leaves no room for conjecture.
Article 250 provides that members of the JSC are appointed by the President. Article 74 provides that all State Officers (and a member of JSC is a State officer) must subscribe to the Oath of Office before they assume office.
Since he was taken through a process of election for this position, Justice Warsame was assuming office.
Justice Mwita in his decision bypassed the appointment provisions, by “deeming” Justice Warsame appointed and did away with the requirement for the Oath of Office on the basis of a contested provision of the Judicial Service Act.
His decision totally ignored the clear and unambiguous provisions of the Constitution.
There can be no greater evidence of judicial overreach and judicial impunity than this decision.
In one stroke of a pen, the Judge effectively ordered that two provisions of the Constitution be violated, an action that would be unthinkable for other institutions.
“Even as the Court went out of its way to lament the President’s alleged unconstitutional act of refusing to appoint Justice Warsame, it failed to see the patent contradiction.”
“In “appointing” Justice Warsame, for that is what the Judge did, and exempting him from taking an oath of office, he was acting beyond his constitutional competence and in violation of the same Constitution, he was purporting to protect.”