The war against corruption yesterday suffered a major setback after the High Court quashed a law conferring immunity on Parliamentary investigations.
A landmark ruling by Justice John Mativo also nullified a provision protecting MPs from being served court orders in Parliament or halting Parliament's businesses or decisions.
“No proceedings or decision of Parliament or the Committee of Powers and Privileges acting in accordance with this Act shall be questioned in any court,” reads the annulled Section 11 of the Powers and Privileges Act of 2017 that insulated MPs against judicial intervention.
The judge described this section a "finality clause", which restricts or eliminates judicial review.
President Uhuru on July 21, 2017, assented to the Powers and Privileges Act, consequently granting MPs immunity.
Judge Mativo, deciding in a petition filed by former Law Society of Kenya boss Apollo Mboya, said the two sections contravene Sections 1, 2, 3, 10, 19, 20, 21 (1)22 , 23, 24, 48, 50, 93 (2) 94(4) 159, and 258 of the Constitution.
“In our constitutional dispensation, it is not Parliament or the Executive or the Judiciary that are supreme, but the Constitution” the judge ruled.
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The law was hastily amended and passed in 2015, following numerous court injunctions against the 11th Parliament. At the time, a number of lawmakers were facing charges of misappropriation of funds.
Mboya had told the court that the law shields lawmakers from being served with court documents, hence, it purports to grant non-existent powers as well as immunity, which puts them above the law.
The lawyer had argued that the end result of the law is to lock out even courts from questioning proceedings or decisions of Parliament.
The lawyer had also told the court that President Uhuru committed an illegality when assenting to the Bill and he should have referred it back to Parliament for reconsideration.
But the judge found that the President had properly assented to the Bill and ruled that the President or Parliament cannot be blamed anytime legislation is declared unconstitutional.
“I find no basis to invalidate the legislation on grounds of the alleged breach of Article 115 of the Constitution on the part of the President,” Mativo ruled.
The net effect of the judgment is that it has exposed the House to court injunctions that could curtail its investigative power.
This could paralyse key investigations under various committees of the House, potentially crippling their ability to conduct wide-ranging oversight.
“Parliamentary immunity is not an individual privilege granted to members of Parliament for their personal benefit but rather for the people and the institution which represents them," Justice Mativo ruled.
The court found that the disputed law does not specify the nature of decisions or immunity in the performance of legislators’ duties.
Section 7, which was scrapped, had insulated MPs from being served with court orders within the precincts of Parliament, consequently placing lawmakers out of reach and above the law itself.
Under the section, it was difficult for people of interest to block MPs from questioning them — even in malicious instances — as the lawmakers were inaccessible to court orders.
The section provided that no process issued by any court in the exercise of its civil jurisdiction shall be served or executed within the precincts of Parliament or through the Speaker or any officer of Parliament.
The High Court also scrapped the two key sections of the Act that had given MPs sweeping powers to summon and question suspects without fear of restraining court orders.
Section 11 insulated MPs from litigation in case Kenyans are aggrieved with decisions of Parliament or committees, according them super powers to do what they wanted at will.
Section 12, which was not challenged in court, still gives MPs total immunity from prosecution, in effect guaranteeing that they will not be sued in their lifetime for "anything done...in good faith" during their tenure.
The section gives the Speakers, Majority leaders, Minority leaders, committee chairpersons and parliamentary staff immunity from legal prosecution for anything done in the line of their duties.
Following yesterday's ruling, any Kenyan anticipating parliamentary summonses can rush to court, obtain restraining orders and then proceed to serve MPs through the Clerk or the Speaker so as to avoid questioning.
This could deal a blow to anti-graft efforts and Parliament’s oversight role that includes apportioning culpability in economic crimes involving theft of public funds.
The ongoing investigations into the Sh9 billion National Youth Service scandal could be affected if suspects targeted by Parliamentary panels for interrogation move to court to block summonses.
The ruling could open another battlefront between the Legislature and the Judiciary, two arms of government that have previously been at loggerheads over claims of attempts to emasculate the other.
Chief Justice David Maraga has previously told MPs that the Judiciary will not hesitate to step in where it believes that MPs are conducting quasi-judicial hearings without fairness and justice.
No sooner had Justice John Mativo’s ink dried than National Assembly Majority leader Aden Duale hit back, warning that the Judiciary has been captured by judicial activists.
“The judiciary wants to prefect the other arms of government and people must resist Judicial activism and rogue judicial officers acting with impunity,” protested Duale from Singapore where he is on official parliamentary duties.
The vocal Garissa Township MP said that the world over, the precincts of Parliament are privileged areas where MPs enjoy partial immunity against legal suits emanating from the nature of their work.
“They [Judiciary] cannot dictate how another arm of government conducts its affairs. This is part of a scheme where the Judiciary is violating the principle of separation of powers as contemplated in the Constitution,” he said.
Senate Clerk Jeremiah Nyegenye, who is also the secretary to the Parliamentary Service Commission, told the Star that Parliament was studying the judge’s ruling before deciding on the next course of action.
“The judgment has just been delivered today. As the secretariat we are studying it with our lawyers before deciding the next step,” he said from Mombasa where he is attending the Legislative Summit of the Senate and county assemblies.
National Assembly Clerk Michael Sialai said the Judiciary was acting within its constitutional mandate to determine the constitutionality or otherwise of any law.
“We will study the ruling and advise the House whether to appeal or revisit the annulled sections to align the Act with the Constitution,” he said.
MPs have always complained that constant court orders by people of interest against Parliament had significantly slowed down their efforts to fight corruption.
Former LSK chief executive officer Mboya had challenged the sections of the law that he said granted lawmakers, including MCAs, "super immunity".
Mboya argued that the end result of that law is to lock out even courts from questioning proceedings or decisions of Parliament.
He wanted the court to nullify the Act on grounds that there was no public participation and involvement of key stakeholders such as the Judiciary.
He argued the law locked out the courts from questioning any proceedings or decision of Parliament, including the illegality, irregularity or constitutionality, or otherwise of any legislation.
Last September the High Court quashed proceedings of the National Assembly’s Finance committee against Auditor General Edward Ouko.
Judge George Odunga ruled that the proceedings of the committee failed the test of fair administrative action in a petition by lawyer Emmanuel Mwagonah, who wanted Ouko removed from office.
National Assembly Speaker Justin Muturi has said the avalanche of orders issued in favour of persons of interest under probe by National Assembly and Senate committees was part of attempts to gag the House.
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