Now that the East African Law Society has wormed its way into the Shollei/JSC imbroglio, and various pundits are punditing on the implications of the Legal Affairs Committee's summonses to Gladys Boss Shollei and members of the Judicial Service Commission, it makes sense for someone to take a less histrionic view of the situation. The Chief Registrar claims that natural law was ignored when she was sent home on compulsory leave to "pave way for independent investigations." A member of the JSC was on TV last night pleading innocence against allegations Ms Shollei has made against him regarding the procurement of a building for the Court of Appeal when it sits in Mombasa. Now doubts are being expressed whether the National Assembly understands the concepts of separation of powers and checks-and-balances.
This blogger has a very dim opinion of the National Assembly (and the senate too, for that matter.) The Members of the national Assembly have attempted to line their pockets as quickly as possible at the great expense of the unemployed masses. They have not - NOT! - performed their duties faithfully or intelligently. They have failed, time and again, to consider the issues before them with sobriety or wisdom. They have spent a lot of time making the legislative equivalent of monkey-faces at the Senate and devolved government. It is quite obvious that the members of the Legal Affairs committee have an axe to grind; it is just unclear against whom they bear this animus.
In the separation of powers doctrine, as enumerated in the Constitution, the National Executive, Parliament and the Judiciary are distinct and separate. The National Executive and Parliament are elected by popular vote. The senior ranks of the Judiciary are appointed by the Executive, but only after (relatively) nominations by the Judicial Service Commission and approval by Parliament. The Chief Justice, the senior-most judge in Kenya, is the head of the Judiciary, the President of the Supreme Court and the Chairman of the JSC. The Legal Affairs committee, ordinarily when dealing with the Judiciary, would do so through the Chief Registrar, not the Chief Justice. Ms Shollei, unless she is fired, is the Chief Registrar. In her absence, the Deputy Chief Registrar would act in her place. Because the dispute is between Ms Shollei and the JSC, the Legal Affairs Committee should have summoned the Deputy Chief Registrar, and if he is part of the investigation against Ms Shollei, then his deputy, if there is one. The committee cannot, and does not have the power to, summon the Chief Justice or any member of the Judiciary. This is the separation of powers doctrine at work.
If the committee is satisfied that the Chief Justice, in his role as the Chairman of the Judicial Service Commission has acted contrary to the law, it can only recommend to the President the appointment of a Tribunal to investigate the Chief Justice, and if the Tribunal finds that the Chief Justice has violated the law, recommend his dismissal. The role of the committee ends at finding that the appointment of a Tribunal is warranted. That is the extent of its role under the doctrine of checks and balances.
No one expects the Members of the national Assembly to possess such a sophisticated appreciation of the nuances of theories of governance; they barely have a working knowledge of the provisions of the Constitution as it is. Therefore, and this is where their priorities have been misdirected, they require a competent technical staff to advice them on the ins-and-outs of these niggly niches of the law. Otherwise, the spectacle of ill-qualified law-makers making embarrassing mistakes in the execution of their duties may become an all too common affair and this might further lower the already low opinion of the National Assembly and its members.
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