Three weeks ago, a three-judge bench of the High Court annulled the appointment of Mr Mumo Matemu as the chairperson of the Ethics and Anti-Corruption Commission.
In a petition filed by the Trusted Society of Human Rights Alliance, the court castigated Parliament and the Executive for failing to conduct proper inquiry into the integrity of Mr Matemu as required by Chapter Six of the Constitution.
This decision adds to a growing list of the court’s bold reviews of important decisions of government.
Addressing the challenge by the Attorney-General and Mr Matemu to the petitioner’s right to file the petition, the court ruled that the petitioner had a right since it was a non-governmental organisation tasked with promoting human rights and constitutionalism.
This is a resolute vote for public interest litigation, and is of particular importance in matters of public concern. Under article 156, the AG is both the defender of public interest and the government’s legal representative.
This creates an inherent conflict of interest where the threat to public interest is caused by the government. In such circumstances, the broadened scope of locus standi permitting citizens to act, safeguards public interest, the rule of law and constitutionalism.
This decision is significant for a number of reasons. First, it is a strong affirmation of the supremacy of the Constitution over Parliament and the Executive.
Through it, the court is saying that although Parliament is the people’s voice, its actions will not stand if they are at variance with the Constitution.
Second, in the wake of cries about Parliament’s weakening of Chapter Six through a “diluted” Leadership and Integrity Act, the decision affirms that Chapter Six is not merely aspirational.
It contains hard rules that must shape the attitude and conduct of government.
While the political arms of government enjoy wide discretion, this is not a licence to disregard the fundamental principles of the Constitution such as the integrity of constitutional office-bearers.
Third, the court observed that since the DPP bears responsibility for criminal prosecutions, he is instrumental in the vetting of public officials.
It noted that since the DPP’s is a public office, he bore “responsibility to properly inform the appointing authorities about the investigations facing [Mr Matemu].”
It would logically follow from this statement that all other public bodies or officers such as the police, the AG and others who may be privy to adverse information about applicants to public offices would be obliged to divulge that information to the appointing authorities.
Fourth, the decision reflects a willingness by the court to downplay technicalities for the sake of upholding the ideals of the Constitution.
While acknowledging that the petition did not frame the issues in the most precise fashion, the court nonetheless admitted the petition since it pointed out a constitutional fault for which the court could order a remedy.
Finally, this decision sends a clear message that the Judiciary can no longer be viewed as “the third and weakest” arm of government.
The Judiciary is asserting its place in government, and the other arms of government can no longer ignore the demands of the Constitution and the law under its watch.
Mr Kibet is a lecturer at the Riara Law School. (firstname.lastname@example.org)
Daily Nation By ERIC KIBET
Posted Tuesday, October 16 2012 at 18:26