The fetishisation of the Constitution, indeed of the law, is a mistake. If we are going to make an idol out of the law, at least let us pretend to do all that a religion requires, like learning the catechism, for our new religion. To make this new religion a success we must understand what the chapters and verses of the Constitution say and what they mean. Without that essential ingredient, then it will be as if the high priests of this new religion are taking us for a ride the same as those myriad one-church fly-by-night preachers who make our lives miserable.
Chuma Mwendwa, writing in the Daily Nation, suggests that the Judicial Service Commission must obey the summons issued by the Justice and Legal Affairs Committee of the National Assembly under the provisions of Article 10 of the Constitution, as well as, rather oddly too, Article 173 on the Judiciary Fund (Why JSC should appear before the House, 29/08/13). Mr Mwendwa is wrong. The only relevant provisions are Article 251 of the Constitution on the removal of a Commissioner in a constitutional commission and section 12 of the Judicial Service Commission Act, 2011, on the suspension and removal of the Chief Registrar. The allegations and counter-allegations made by the Judicial Service Commission and the Chief Registrar can only be resolved either by the removal of the members of the Commission from the Commission or the dismissal of the Chief Registrar from office.
No one disputes that Parliament has the power to investigate the Judicial Service Commission; however, Parliament does not have the power or authority to summon members of constitutional commissions. Commissioners may choose to appear before parliamentary committees and if they choose not to, they cannot be compelled to do so. Parliament is not a court of law and it does not enjoy powers of a court, even if Members of Parliament think it does. If their lawyers are advising them that they have that power, someone should swiftly disabuse them of this erroneous interpretation of the relevant law.
The dispute between the Chief Registrar and the Judicial Service Commission is the JSC's fault. We may not like the idea of a person being investigated not being suspended while the investigation is being conducted, but that is the law that we have on the books. We do not have a law that says the JSC can make things up as it goes along. The JSC was wrong to suspend the Chief Registrar without informing her of the decision to do so and without giving her an opportunity to challenge the decision.
The JSC must have information that compelled it to act as it did. But this information is worthless if the JSC refuses to obey the express provisions of the law. In this case, section 12 of the Judicial Service Commission Act enumerates the steps that must be taken before the Chief Registrar is suspended from office or removed. The JSC disregarded these provisions. Now we will never know if the Chief Registrar is a crook or not.
The parliamentary committee has also misread the law. While it has power to investigate, its investigations do not empower it to summon members of constitutional commissions or holders of independent offices. Parliament does not even have the power to dismiss the holders of offices in constitutional commissions. It can only investigate and recommend to the President the appointment of a tribunal to investigate further and recommend whether the individual commissioners should be dismissed or not. In its investigations the parliamentary committee can summon any other person or it can receive information and testimony from any other person. It failed to exercise this power. All it needed to do was summon the acting Chief Registrar, Deputy Chief Registrar Kaikai Kissinger, and ask him to provide the information it required to make a decision in the matter.
Mrs Shollei, the Chief Registrar, has gone to the High Court and the High Court, after hearing her, has suspended any investigation into her affairs as Chief Registrar. But the decision to allow the parties to negotiate a settlement is wrong-headed and illogical. If Mrs Shollei did what was alleged by the JSC, then she is unfit to hold office. If the JSC was wrong to suspend her as it did, then it cannot competently discharge its duties. One or the other must go. The decision of the JSC risks destroying the Judiciary's newly stellar reputation.
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