NAIROBI, November 11 – The High Court has temporarily blocked the proposed disbandment of the Electoral Commission of Kenya (ECK).
The order by High Court judge Joseph Nyamu on Tuesday will stay in force for the next 14 days while the file goes to the Chief Justice for further directions.
Justice Nyamu ruled the case raised ‘fundamental constitutional issues’ that had not been raised before and added that it was his duty ‘to protect the constitution’.
“To my mind, the application before me raises some of the greatest constitutional questions ever raised in the history of our courts,” Justice Nyamu said.
“As an individual, I have no definite answers to the aforesaid questions. All I can observe at this stage is that the answer to the question when ultimately given will touch on the supremacy and sanctity of the constitution and its effectiveness,” he added.
The ECK commissioners on Monday moved to court in an effort to block their likely disbandment after a damning indictment by the Independent Review Commission headed by retired South African judge Johann Kriegler over the disputed 2007 general election.
ECK Chairman Samuel Kivuitu and his 21 commissioners said they were opposed to the creation of an interim body to replace them.
Their complaint arose from a proposal by a ministerial committee appointed last month to look into how the Kriegler recommendations would be best implemented. The committee had proposed that the ECK be dissolved through the Constitutional Amendment Bill of 2008 which would be presented to Parliament.
Lawyer Kibe Mungai representing the Commission submitted before the court that if the Bill was passed by Parliament it would mean that the Executive would have “usurped powers expressly bestowed on the judiciary”.
According to the lawyer, Parliament does not have unlimited power to amend the constitution in a way that would enable an alteration of the supreme document.
“My Lord, one cannot say that you can amend the constitution in order not to comply with it,” Mr Mungai argued.
According to the lawyer, it was necessary that the court blocks the move to avert ‘a likely breach of the constitution’, saying Parliament is already in the process of amending the Constitution including the ECK matter.
Mr Mungai said that the move to oust the commissioners through a constitutional amendment would be tantamount to allowing removal of constitutional office holders without reference to Section 41 of the constitution which dictates ‘adherence to a judicial process’.
In this regard, a constitutional office holder can only be removed from office if he or she fails to perform his/her duties or is guilty of misconduct. But this action is only possible after they have been heard and tried by a specially appointed tribunal.
He argued that by the mere fact that ECK officials enjoyed security of tenure, it was incumbent that the Court protects the constitutional privilege.
“Unless the legislative actions are stopped pending the resolution of this case the petitioners’ (Kivuitu and his 21 Commissioners) application will be rendered nugatory,” Mr Mungai told the court.
Justice Nyamu certified the matter urgent saying that ECK had established ‘a strong case of great importance’ because the handling and determination of the issues raised would be of constitutional importance to all constitutional office holders in the future.
He ordered that the case be heard on the November 24 and further directed Mr Mungai to serve all parties in the case before the close of business on Tuesday.