By Prof Gitile Naituli
The term Kangaroo court was given a whole new meaning by judge L. Kassan of the Meru high court. The kangaroo jumped the fence in a petition filed by governor Kawira Mwangaza in which she sought to frustrate an impeachment motion against her in the Meru county assembly.
The court made a really crazy ruling.
First, the court ordered Njuri Ncheke council of elders to arbitrate the dispute between the governor and the county assembly….”as ordered by the president of Kenya”
The court further ordered the parties and their advocates to present themselves before the Njuri Ncheke council of elders.
Finally, the judge ordered the parties to submit the outcome of the arbitration in three weeks’ time.
This ruling raises a number of constitutional, legal, and moral questions. The judge is presumably aware of the principle of separation of powers. One of the established pillars of the said principle is that no arm of government should interfere with the operations of the other. As such, a court of law can not injunct parliament and, by extension, the county assembly. The same way parliament or county assembly can not debate a matter pending before a court of law because of the sub judice rule. However, after parliament dispenses with enacting a law or passes an impeachment motion, a court of law can be moved to declare an Act of parliament unconditional to the extent that it is inconsistent with the constitution. A court can also nullify an impeachment when there are sufficient grounds to do so.
In this particular case, for whatever reason, the court decided to injunct the Meru county assembly. However, in doing so, the court engaged in an unprecedented act of constitutional jerry mandaring by tagging and hiding behind entities who are alien to the suit. Tagging the president and seeming like the judge is implementing a presidential order is a chilling act of judicial misconduct. The presidency is not a higher court. Similarly, the judge can not issue an order to Njuri Ncheke.
Furthermore, the order to the Council is in vain and incapable of compliance because of the following. The question of impeachment of governors is constitutionally an exclusive preserve of the county assembly and the senate. To expect a traditional council of elders to convert itself into both the senate and county assembly and resolve complex matters of accountability is to expect the proverbial camel to enter through the hole of a needle in a public show at Kinoru stadium. Moreover, Njuri Ncheke is composed of hundreds of autonomous houses. Only on very few occasions have we witnessed a unanimous communal declaration by the council. Unfortunately, we have also seen some members taking political sides depending on which side of the bread is battered. When it comes to politics, there has never been a unanimous position. It is, therefore, weird and unacceptable that the judge invited Njuri into partisan politics. This was abdication of duty to actively aid one party and throw the other into confusion. Njuri was introduced in the petition as a tactical barrier to impeachment.
Most importantly, the court is diving into complex cultural dynamics way beyond its comprehension. Women do not appear before Njuri Ncheke! According to Njuri, women are to be protected while at home. Even if women were to be given audience by Njuri, governor Kawira is a serial offender with scanty respect for the Council. The last time she was impeached, she presented a fake character as chairman of Njuri Ncheke to the senate. We have seen callous politicians create factions within Njuri and use them for selfish interests. This is what Kawira did, and unfortunately, the court aided a monumental miscarriage of justice. The procedure for impeachment of governors is clearly spelt out in the constitution and the County Governments Act. At no point are traditional councils of elders mentioned. What would happen to counties with no councils of elders?
It is obvious that the governor, like the last impeachment process, must by now have her preferred elders ready waiting in the wings. There are dubious characters everywhere, including in Njuri Ncheke. It must be pointed out that a matter to do with impeachment of a governor is a national issue beyond the county in question. Attempting to remove impeachment powers from the relevant constitutional bodies and bestowing the same to tribal councils is an obnoxious assault on the Constitution and our collective conscious as a country.
In my view, the ruling was a grave subversion of the constitution, the rule of law and democratic principles in as much as it vandalised the principle of separation of powers, systems of accountability as well as creating Njuri Ncheke as a fourth arm of government. This is a case of institutional capture that must be vehemently rejected by the people of Meru and all Kenyans.
Going forward, both the county assembly and the Senate must appeal this ruling under certificate of urgency in order to reclaim and restore constitutional sanity in the impeachment process of governors.
