The MPs’ Salaries Case: A Triumph for Constitutional Supremacy in Kenya

Gado on MPs Salary Raise

“Parliamentarians are expected to operate within the letter and the spirit of the Constitution. Parliament, like all other state organs, is not above the law. Members of the National Assembly, like all other state officers, and the National Assembly, like all other state organs are compelled by the Constitution to adhere to the national values and principles of governance found in Article 10 of the Constitution. We therefore agree with the petitioners that the resolution by the National Assembly to nullify the Gazette Notices published by the SRC was unconstitutional.” – Judgment in Petition No. 227 of 2013 at paragraph 82.

The above judgment by a three-judge bench sitting at the High Court at Nairobi is significant for two distinct yet connected reasons: firstly, it is a big win for the doctrine of constitutional supremacy against the doctrine of parliamentary sovereignty and secondly, it restores much-needed public trust in the ability of the Judiciary to dispense justice. A copy of this landmark judgment is available here.

In the recent past, there have been several spirited public campaigns against members of parliament (MPs) whom many registered voters feel have gone rogue by putting their narrow private interests above those of the electorate that put them in public office. The climax of this perceived parliamentary impunity came in May 2013 when the National Assembly (NA) wrote to the Salaries and Remunerations Commission (SRC) purporting to nullify the remuneration of various categories of state officers which the SRC had published in the Kenya Gazette.

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The Week That Was: Interesting Tidbits…

Here’s a quick recap of recent developments:

Latest on the Constitutional Amendment debate

“The incumbency has lost the power of deciding an election date. Now they want to get it back just one more time through the back door.” – Martha Karua, MP & Presidential Aspirant in 2012 Elections.

The Speaker of the National Assembly ruled that the Cabinet (through the Justice and Constitutional Affairs Minister) was within the provisions of the Constitution and Parliament’s Standing Orders to table the Constitutional Amendment Bill which seeks to change the general election date from August to December 2012. This Bill has already been tabled for the First Reading in Parliament.

Since Cabinet’s “logistical reasons” excuse for having Elections in December instead of August has failed to hold sway with us, they’ve now crafted a new reason. Listen to this:
“The Cabinet decided to seek a constitutional amendment to hold the elections in December because President Kibaki’s term expires on December 30, 2012. If the elections are held before that date, the country will not have a President and Commander-in-Chief because, legally, the President’s term would have expired.”

Meanwhile, Prof. Mutua in his weekly “Letter from New York” expresses a real fear that the on-going war against Al-Shabaab could be used to postpone the 2012 elections. He concludes by saying that Kenya’s war against Al-Shabaab is necessary and that’s why Kenya may have to postpone elections if necessary.

With due respect, any attempt to push General Elections to 2013 by invoking the President’s “unexpired term” or “national security” must be rejected in the strongest possible terms. We are aware that MPs, Permanent Secretaries and other high-ranking government officials whose Terms of Office, by and large, are tied to the Elections date would be more than happy to have elections in December 2012 or March 2013 or even much later. But what about the People of Kenya? All the People want is a peaceful, free and fair election – preferably sooner than later, yes?

Evictees awarded over 200 million shillings as damages for violation of their rights

“…The evictions were then supposed to be carried out in a manner that respected human dignity, right to life and the security of the affected…” – Muchelule, J., High Court.

In the case of Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial Administration and Internal Security & 10 others [2011], Justice Muchelule sitting in the High Court at Embu has awarded a global sum of Kshs. 224,600,000/= to 1,123 ‘Medina Evictees’ as damages following their eviction from unalienated public land within the jurisdiction of the Municipal Council of Garissa. The court also declared that the petitioners’ fundamental rights as outlined in their petition had been violated by virtue of the eviction from the alleged public land and the consequential demolition of property by the respondents. Read the full case here.

As the dust settles on the Syokimau demolitions, we heard the news of the residents living adjacent to the Eastleigh Air Force Base, who had their flats demolished, to their utter shock and disbelief. It is hoped that this positive outcome from the halls of justice can be relied up by the residents of both Syokimau and Eastleigh as they explore options for legal redress from the State.

Speaking of legal redress…

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