The five-judge bench composed of Principal Judge Richard Mwongo, Justices Hilary Chemitei, Helen Omondi, Christine Meoli and Mumbi Ngugi explained that since the tribunal was formed in contravention of a court order, it was illegal.
“We have found that all State organs are under a constitutional obligation to obey court orders. The question that then arises is whether the act of the President in setting up a tribunal pursuant with the recommendation of the National Assembly, made in disobedience of a court order is valid. The answer to this question must be in the negative. From the foregoing discussion it follows that any decision made or action taken in defiance of a lawful court order is null and void,” Chemitei read out.
The bench ordered that the tribunal led by Aaron Ringera and made up of Ambrose Weda, Jennifer Shamallah and Mutua Kilaka should not be sworn into office. READ Uhuru picks Ringera to probe Ahmednassir and team
“We issue an order prohibiting Justice (Rtd) Aaron Ringera, Jennifer Shamallah, Ambrose Otieno Weda and Mutua Kilaka from taking oath, assuming office, carrying on or in any way discharging their mandate as members of the tribunal appointed under Special Gazette Notice Number 15094,” Justice Mwongo directed.
On October 30, 2013, the High Court prohibited the National Assembly from debating and subsequently recommending to the President the suspension and formation of a tribunal to investigate JSC members Christine Mango, Ahmednasir Abdullahi, Mohamed Warsame, Emily Ominde, Samuel Kobia and Florence Mwangangi.
But despite the court order, the National Assembly went ahead to debate the petition filed before it by Riungu Nicholas Mugambi for the removal of Mango, Abdullahi, Warsame, Ominde, Kobia and Mwangangi (Abdullahi no longer represents the Law Society of Kenya in the JSC).
Following which High Court Judge George Odunga on November 6, 2013 barred their suspension or removal pending the hearing and determination of the suit filed by the JSC challenging Parliament’s action.
President Kenyatta however went ahead and suspended the six commission members and formed the Ringera-led tribunal to investigate their conduct on November 29, 2013.
The decision earned criticism from members of the opposition and the Law Society of Kenya (LSK) but it also drew mixed reactions from the Commission for the Implementation of the Constitution on the separation of powers between the two arms of government.
Parliament argued that it was justified in ignoring the court order that barred it from debating the removal of the six commissioners as it infringed on the powers vested in the House by the Constitution.
It in turn accused the JSC of failing to recognise the oversight powers of Parliament when it snubbed summons to appear before it.