By SAM ALFAN.
The High court has declared that the Judicial Service commission is a constitutional body that is not subject to control of the national assembly or any other departmental of the government.
Five judge benches said that the attempt by the National Assembly through committee of justice and Legal Affairs to summon JSC six commissioners was unlawful and arbitrary.
The judges Justice Richard Mwongo, Mumbi Ngugi, Christine Meoli, Chermetei and Hellen Omondi, said the purported petition filed by Riungu Mugambi which sought to punish members of the JSC was an encroachment on the independence of the judiciary
The court ruled that tribunal appointed by the President to investigate members of the JSC was null and void because parliament deliberated on matters touching on the judiciary and forwarded the resolution to the head of state when there were orders from court stopping any discussion concerning the JSC.
The six members of the JSC to be investigated are Ahmednasir Abdullahi, Dr Samuel Kobia, Prof Christine Mango, Justice Mohamed Warsame, Ms Emily Ominde and Ms Florence Mwangangi.
“Neither can its Departmental Committees established under the Standing Orders in the lawful discharge of its Constitutional mandate under Article 172 of the Constitution do so,” Principal judge Richard Mwongo said while delivering the decision of the bench.
Parliament had declined to be party to the court proceedings that culminated in a finding that was a proper Petitioner that the Speaker of the National Assembly was properly enjoined in the proceedings.
And that in the circumstances of the case, the President can be bound by Court orders arising from proceedings to which he was not a party.
The bench of five led by Principal judge Richard Mwongo ruled that the high court has jurisdiction in relation to acts of other arms of government.
“Judicial intervention by the High Court is not a violation of the doctrine of separation of powers insofar as the Court is performing its solemn duty under Constitution in inquiring into alleged constitutional violations or contraventions,” Judge Mwongo said in their verdict.
The decision of court held that Parliament’s constitutional powers of oversight do not amount to a right to subjugate, micromanage, control or direct the JSC.
The judges declared that the National Assembly through the Departmental Committee on Justice and Legal Affairs is not entitled to supervise and sit on appeal on the decisions of the Judicial Service Commission when the Commission is discharging its lawful mandate under the Constitution.
“Oversight connotes the constitutional imperative aimed at the enhancement of democracy and the rule of law through upholding and protecting the financial and administrative independence of constitutional commissions,” said Mumbi reading the judgment.
High court also quashed the proceedings before the Committee on Justice and Legal Affairs seeking the removal of members of the Judicial Service Commission.
“The resolution of the National Assembly to transmit the Petition to the President in defiance of a Court order is null and void and is hereby quashed,” Judge Mwongo said.
The judges held a view that Parliament should consider the establishment of a committee within Parliament dedicated to the oversight of all the independent offices and commissions.
The appointment of the Justice (Rtd) Aaron Gitonga Ringera, Jennifer Shamalla, Ambrose Otieno Weda and Mutua Kilaka by the President as members of the Tribunal to investigate the six JSC Commissioners under Special Gazette Notice No. 15094 was declared quashed.