NAIROBI, November 20 – The Electoral Commission of Kenya officials on Thursday wrote a protest letter to Deputy Speaker of National Assembly, Farah Maalim over parliamentary debate that criticised the High Court for blocking the disbandment of the Commission.
Through their lawyer Kibe Mungai, the Commissioner’s strongly criticised Parliament for censuring Justice Joseph Nyamu terming the debate as having been based on gross misunderstanding of the court order.
Mr Mungai argued that the order was directed at the Government and not to Parliament as perceived by the legislators during the debate.
“To the best of our client’s knowledge and understanding, there is no Bill for disbandment of ECK or their removal pending before National Assembly let alone resolution thereon and so the issue of section 12 of the National Assembly (Powers and Privileges) Acts (CAP 6) does not arise,” a section of the letter read.
Mr Mungai noted that as of last Wednesday, no Bill had been introduced in Parliament but notified that as a result of the publication of the Kriegler Report, the government had commenced certain executive and legislative actions and processes to disband the ECK and remove its commissioners from office.
The lawyer cited section 73 and 74 of the Standing Orders saying the two sections prohibit negative reference to any personal conduct of the President, the Speaker, any judge and the judicial conduct of any other person performing judicial functions.
“The constitution allows any citizen of Kenya who is aggrieved by any act or omission; be it commercial, governmental action or any dispute involving the law to commence a legal action in the High Court,” Mr Mungai said in the letter.
MPs were last week enraged by a High Court order barring the disbandment of Electoral Commission of Kenya (ECK).
Kisumu Town West MP Olago Aluoch initiated the debate on the issue when he mounted criticism on the High Court for usurping powers bestowed on Parliament, arguing that Justice Joseph Nyamu erred in law.
Mr Olago said Parliament was guarded by the National Assembly Powers and Privileges Act which prohibits the issuance of orders against the legislative arm of the government.
“Mr Speaker, that ruling by the court offends the constitution and provides an avenue by which the separation of powers in this Republic between the Judiciary, the Executive and the Legislature can open a case,” said Mr Olago.
He said the ruling offended the constitution and was a blatant erosion of the powers of Parliament.
“That order amounts to subjugation of Parliament to the Judiciary. It is a direct erosion of the powers and supremacy of this Parliament,” he said.
He maintained that the Judiciary had no powers to stop debate of the House and said that Parliament was immune from outside interference.
On Tuesday last week, Justice Nyamu who is the head of the Judicial Review Division at the High Court ruled that an application by ECK chairman Samuel Kivuitu and 21 commissioners objecting to the planned dissolution of the commission raised important constitutional questions that required interpretation.
He however noted that the proposed Bill through which ECK may be dissolved, had not been tabled in Parliament.
He said that it was his constitutional duty to protect the constitution by granting orders to avert the possibility of rendering the application by ECK useless.
The ECK had asked the court to issue the barring orders amid apprehension that a Cabinet sub-committee had proposed a Bill that would see Parliament amend the constitution to allow for its disbandment and the establishment of an interim body styled as ‘The Interim Electoral Commission’ in its place.
The commissioners maintained that they were protected by the constitution and enjoyed security of tenure as constitutional office holders and the Bill would be “an attempt to alter the constitution in order for Parliament not to comply with it (the same document”.