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MPs and judiciary on the warpath

NAIROBI November 12 – Members of Parliament were on Wednesday enraged by a High Court order barring the disbandment of Electoral Commission of Kenya (ECK).

Kisumu Town West MP Olago Aluoch initiated 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 the House was immune from outside interference.

Section 12 of the Act provides that no proceedings or decisions of the National Assembly shall be questioned by the Judiciary.

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Imenti Central MP Gitobu Imanyara contributing to the complaint, described the ruling as “an act of arrogance and abuse of power by the judiciary” and accused the court of issuing orders in vain.

Mr Imanyara added that the constitutional division (the Judicial Review Division) of the court was illegal and urged Deputy Speaker Farah Maalim to order its dissolution.

“Unless this House issues directives to the Judiciary not to issue orders in vain, we shall create a situation of total anarchy,” said Mr Imanyara.

Saboti legislator Eugene Wamalwa similarly echoed the sentiments and accused the court of disrespecting Parliament.

Mr Wamalwa condemned the disregard of the doctrine of separation of powers and said the judiciary was wrong.

“Mr Speaker, for another arm of the government to attempt to give orders to prohibit this arm of government from executing its duty, is a serious matter,” Mr Wamalwa said.

Supremacy of the constitution

On Tuesday, 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.

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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”.

The office of the Speaker is expected to rule on the matter next Tuesday.

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