The idea behind independent offices and constitutional commissions is a sound one, in the light of the previous muscular intervention of the Presidency in the exercise of power and performance of functions by State institutions such as the Judiciary. It is for this reason, this blogger believes, that the Committee of Experts sought to insulate the independent offices and constitutional commissions from interference by both Parliament and the national Executive. Hence the clause "commissions...are independent and not subject to direction or control by any person or authority." [Art 249(2)(a)]
That clause is not in conflict with Article 95(5)(b) that describes Parliament's role to "exercise oversight over State organs" or Article 125 (1) that empowers Parliament to "summon any person to appear before it for the purpose of giving evidence or providing information." The harebrained attempt by the High Court, while interpreting the former Constitution, to attempt to invalidate one part of the former Constitution because it was in conflict with another part will not apply in this case; while giving its opinion on the Two-thirds Gender Rule, the majority of the Supreme Court stated that the Constitution must be read in context and as a whole, with each part of the Constitution complementing each other.
The chairperson of the Justice and Legal Affairs Committee of the National Assembly declared on the floor of Parliament that Parliament has teeth, he has teeth, and that the Judicial Service Commission cannot ignore summons from his Committee. Previously, when the Committee had failed to ensure that members of the JSC appeared before it, he had argued that because the Committee reviewed the budget of the Judiciary, it had the power to compel the appearance of the members of the JSC before it and to examine it on matters that affected the administration of justice in the courts.
This blogger has previously argued that the parliamentary committee, and its chairperson, have misunderstood their mandate under the Constitution and arrogated to themselves powers that the do not enjoy. This misinterpretation has not been resolved; Parliament still insists that as part of its mandate to oversee State organs, and the power to compel persons to appear before it to give evidence, it has the power to summon members of independent offices and constitutional commissions, and to examine them on whatever Parliament may be investigating. Parliament must be made to understand that they cannot summon members of constitutional commissions; commissions are specifically protected from such summonses by Article 249.
The protection from Parliament enjoyed by the Judicial Service Commission does not mean that it, or its members, are laws unto themselves. There is a procedure to be followed if it is suspected that members of the Commission have committed acts that violate the provisions of the Constitution or the law of Kenya. Article 251 provides for the grounds and the procedure for the removal of a member of a constitutional commission. This is the only reasonable interpretation of the National assembly's power of oversight over the Judicial Service Commission. It cannot summon members of the Commission. It cannot purport to discipline them other than under Article 251.
But Parliament is not restricted from summoning the staff in the Secretariat of the Commission; they are not members of the Commission and so are not protected by Article 251. And regardless of whatever rules the Judicial Service Commission has drafted regarding the handling of records and other documents of the Commission, these are documents that Parliament can demand from the Secretariat without violating the protections enjoyed by the commission under Article 249.
The events surrounding the contest of wills between the Chief Registrar and the Judicial Service Commission have become a political football. The chairperson of the Justice and Legal Affairs Committee is not interested in the truth, not from the decisions he, and his committee have made, or in the acts they have committed. What he is interested in is publicity, to show to his constituents that he is a man to be obeyed, even by members of a constitutional commission. He is pursuing his scheme to its bitter end to prove that he is an alpha politician. His scheme can only end in tears.