High Court Judge David Majanja on 30th May 2013 issued an order restraining Members of National from increasing their salaries and remunerations.
The National Assembly had declared null and void the gazette notices issued by the Salaries and Remuneration Commission (SRC) setting out salaries for various state officers thereby increasing the MPs salaries. The house also had decreed to review the conduct, composition and functions of the SRC, other constitutional commissions and independent offices.
Law Society of Kenya, acting on public interest moved to court challenging the move by the National Assembly. By its Petition and Notice of Motion dated 30th May 2013, LSK urged the court to issue conservatory orders restraining the implementation and enforcement of the National Assemblyâ€™s resolution.
The court agreed that the conduct by the National Assembly raises grave constitutional issues of separation of power, mandate of National Assembly, rule of law, constitutionalism and independence of constitutional commissions such as SRC.
Conservatory orders are often issued when there is a real impending danger that the public will suffer a great degree of prejudice if the constitution is violated by a state organ, in this case the National Assembly and the Public Service Commission.
The judge also agreed that the conduct of the National Assembly is likely to be effected with serious consequences nullifying salaries of other state officers including those that are not covered by the National Assembly Remuneration Act, impair SRCâ€™s effectiveness in delivering its work. He therefore certified the petition urgent and granted the conservatory order sought.
The judge in granting the conservatory observed that:
The conservatory orders are, in my view, necessary to prevent loss to the public coffers of sums that would be paid out in the event the ultimate decision of the court is that the cause taken by the National Assembly would be difficult to recover.
On one hand State and public authorities should not be permitted to proceed and implement decisions that violate the Constitution and on the other hand the mandate of the Constitutional Commissions should be protected from erosion of the legislature…It is the judiciary that has the ultimate authority to assert the supremacy of the Constitution..The High Court and the other Superior Courts will have the final word on what the Constitution means.
The petition no doubt raises serious issues of law and is keenly watched on how the court shall decide on them. It is also not lost that it will also be a stage of supremacy battle between the legislature and the judiciary.
It will not be surprise to see Members of National Assembly issuing thinly veiled threats to abolish the judiciary.