High Court Judge David Majanja on 30th May 2013 issued an order restraining Members of National from increasing their salaries and remunerations.
The National Assembly had declared null and void the gazette notices issued by the Salaries and Remuneration Commission (SRC) setting out salaries for various state officers thereby increasing the MPs salaries. The house also had decreed to review the conduct, composition and functions of the SRC, other constitutional commissions and independent offices.
Law
Society of Kenya, acting on public interest moved to court challenging
the move by the National Assembly. By its Petition and Notice of Motion
dated 30th May 2013, LSK urged the court to issue
conservatory orders restraining the implementation and enforcement of
the National Assembly’s resolution.
The
court agreed that the conduct by the National Assembly raises grave
constitutional issues of separation of power, mandate of National
Assembly, rule of law, constitutionalism and independence of
constitutional commissions such as SRC.
Conservatory orders are often issued when there
is a real impending danger that the public will suffer a great degree
of prejudice if the constitution is violated by a state organ, in this
case the National Assembly and the Public Service Commission.
The
judge also agreed that the conduct of the National Assembly is likely
to be effected with serious consequences nullifying salaries of other
state officers including those that are not covered by the National
Assembly Remuneration Act, impair SRC’s effectiveness in delivering its
work. He therefore certified the petition urgent and granted the
conservatory order sought.
The judge in granting the conservatory observed that:
The
conservatory orders are, in my view, necessary to prevent loss to the
public coffers of sums that would be paid out in the event the ultimate
decision of the court is that the cause taken by the National Assembly
would be difficult to recover.
On
one hand State and public authorities should not be permitted to
proceed and implement decisions that violate the Constitution and on the
other hand the mandate of the Constitutional Commissions should be
protected from erosion of the legislature…It is the judiciary that has
the ultimate authority to assert the supremacy of the Constitution..The
High Court and the other Superior Courts will have the final word on
what the Constitution means.
The
petition no doubt raises serious issues of law and is keenly watched on
how the court shall decide on them. It is also not lost that it will
also be a stage of supremacy battle between the legislature and the
judiciary.
It will not be surprise to see Members of National Assembly issuing thinly veiled threats to abolish the judiciary.
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