By Hon Kipchumba Murkomen
The decision of the High Court of Kenya at Kerugoyo concerning the removal of Governor of Embu amounts to reversing the gains we have made as a country in expanding our democratic space through a liberal Constitution promulagted in 2010.
The decision is not only impractical but also totaly flawed and a serious assault on our Constitutional order for the following reasons:
1. There is a growing unhealthy trend of judicial activism in the country where judges make impractical decisions against the grain just for the sake of demonstrating how powerful the courts can be viz a vis the other arms of government. In doing so, the courts are undermining the stature, public confidence and authority of courts. The courts are engaging in acts of â€˜cutting off the nose to spite the faceâ€™.
2. Even in cases all over the world where judges engage in judicial activism, the objective is to achieve public good and to protect the less fortunate in society from acts of maladminstration. Unfortunately, the decision on Embu Governor neither promotes accountability in the use of public funds nor gives justice to the members of public that have suffered immensely in the hands of Embu County Government.
3. The courtâ€™s decision undermines the County Assemblyâ€™s powers and privileges and mocks their oversight role. The contempt of court proceedings against the Speaker and Clerk of County Assembly could be viewed as an act of intimidation directed at all the county assemblies of Kenya with a view to creating an untouchable county executive accountable to no one but themselves. Indeed the decision of the Court does not serve to make the governance situation in Embu better if anything it’s worsening it.
4. The decision of the court is bad in law and total disregard of the seperation of powers doctrine. Parliament and the County Assemblies cannot be injucted when they are performing their constitutional roles. In a proper coonstitutional society, parliametary decisions can only be challenged once they are rendered. Therefore, there cannot be a valid court order injucting Parliament or County Assembly.
5. The decision of the court is not grounded in sound legal basis. Impeachment procedures allover the world go through two stages. First, the indictment of the officer being impeached. At this stage, the articles of impeachment pertaining to specific charges supported by the evidence are drafted and an inquiry may be carried. The Chamber that conducts the proceedings will go ahead to vote on the charges and at this stage the officer need not appear. In the second stage, the actual trial is conducted in a courtroom-like proceeding including, examination and cross-examination of witnesses. The officer will be reprsented in person or by a counsel or both himself/herself and by counsel.
These two stages were observed in the case of Embu Governor. It is, therefore, totally flawed in law for the courts to assert that the right to fair hearing was not observed. Courts of law should respect the constutional responsibilities of other organs and must strive to achieve the right balance. In this case the courts missed the train.
Our desire in the Senate is to ensure that the rule of law is observed in an environment where democracy flourishes. At this rate, Kenya is sliding from democracy to a juristocracy against the wishes of the people of Kenya.
Chairman, Sessional Committee on Devolved Government & Member of Pan African Parliament