NAIROBI, Kenya, May 28 – A controversial judgment delivered by a three-judge bench on the legality of the Kadhis’ courts continued to come under fire on Friday after Constitutional Affairs Minister Mutula Kilonzo claimed that the Judiciary and the Treasury are being used to as stumbling blocks in the constitutional review process.
Mr Kilonzo said the Monday ruling was a sign of the Judiciary being manipulated by politicians.
In a 114-page ruling, Justices Joseph Nyamu, Mathew Emukule and Roselyne Wendoh held that the enactment and application of Kadhis’ Court to areas beyond the ten-mile coastal strip specified during their establishment in the colonial times is unconstitutional.
“Even by normal Kenyan standards of incompetence a judgment that is delayed by six months loses that meat that it ought to have,” said the justice minister.
“Please if you are among those who think that you want to create obstacles to a new Constitution, Mutula is telling you please cease because you will not succeed,” he added.
The government has now directed lawyers to research on past situations where the Appellate Court has quashed similar rulings.
“I am aware of a decision of the Court of Appeal that says that if a decision is delayed beyond a particular point then either the judge goes for fresh submission or sets the judgment aside,” Mr Kilonzo added.
He argued that the arguments in the case closed on March 11 last year and the judgment was issued over 14 months later when the legal landscape has considerably changed.
The minister noted that the matter should have been referred to the Interim Independent Constitutional Dispute Resolution Court which was set up to expeditiously deal with such matters.
He said he will support a Motion by Central Imenti MP Gitobu Imanyara seeking to discuss the conduct of the three judges as it is aimed at holding the Judiciary to account.
“Even if they saw it fit to base their ruling on the evidence they received in the last 14 months, why didn’t they refer the matter to this organ that was set up for that specific purpose; I support the AG in saying that our appeal must be heard before August 4” he said.
Attorney General Amos Wako has challenged the High Court ruling arguing that the court lacked jurisdiction as that the judgment is wrong in law and creates bad precedent.
Several political leaders have however expressed opposition to the motion saying it was an affront on the principle of separation of powers and would undermine judicial independence.
At the same time, Mr Kilonzo is appealing to the international community to help fund Committee of Experts conduct its civic education programme after the Treasury delayed the release of funds for the exercise.
“We have talked to everybody who matters; I have put it in writing, there have been countless meetings between the Treasury and CoE there is no reason for 400 million after the country has spent nearly 25 billion over the last 20m years cannot be made available for this committee to go all over the country,” he said.