In recent past, Kenyans have witness several controversial amendments which many institutions and individuals have seam as unconstitutional and an attempt to give the Executive more power over independent institutions and top jobs appointments.
Critics say most of the amendments are made to rob other independent institutions and give power the Executive in appointment of top jobs including that top police and judiciary jobs.
It also include reduce to stamps independent institutions like Judicial Service Commission, the Office of the Auditor General and Nation Land Commission.
One is the amendment which was moved by Justice and Legal Affairs Committee the Chairman Samuel Chepkonga to enable the President to receive more than one name for the positions of Chief Justice and Deputy Chief Justice, according to parliamentary records.
According to Chepkonga, the changes aim at easing the appointment of the CJ and deputy CJ.
In this JSC would be required to forward three names to the President to fill the vacant positions of CJ or DCJ where President would choose one of the three names then forward to Parliament.
The Law Society of Kenya has challenged changes to the Judicial Service Act, 2011 in court saying the changes interfere with the independence of the Judicial Service Commission.
High Court Judge George Odunga declined suspending the section but certifying the case to challenge the constitutionality of the new law as urgent. The case will be heard on January 13.
“Constitutionalism dictates that an ideal situation should be the one in which an independent constitutional body is charged with the responsibility of determining the best candidate for the CJ,” added Mutua.
Formally, the Constitution stated that the Judicial Service Commission shall forward one name of a qualified person to the President for nomination of Chief Justice or Deputy Chief.
The constitution in Article 166: The President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly.
James Mwamu of Law Society of Kenya (LSK) said giving the President Kenyatta power to appoint the Chief Justice and the Deputy Chief Justice is a trend by the Jubilee administration to erode the independence of constitutional commissions and independent offices.
In the Miscellaneous Amendments Act, the President now has powers to hire and fire top police chiefs, a move appears to be an attempt to undermine independent institutions through parliament amendments.
The three top police job can now be held by people of the same gender after deleting the two-third gender rule in section 14 (b).
This generated cries from the Chairperson of the National Gender and Equality Commission Winfred Lichuma saying it will wipe out gains made.
The President has control over two Deputy Inspectors-General of Police and the Director of Criminal Investigations (DCI) after Miscellaneous Amendments Act removing the role of Parliament in the process.
However, the Jubilee Government has said the amendments were meant to make it easier to deal with security threats like terrorism.
In December 2014, the controversial Security Laws (Amendment) Act was acrimoniously passed by the National in Assembly where some sections were thrown out after being challenged in court.
The amendments also lay hands on the independence of the Auditor-General’s office, the Ethics and Anti-Corruption Commission, and the National Land Commission.
The passing the Public Audit Act which cut off the Auditor-General’s powers is another attempt to erosion of the powers of the independent commissions.
Per the Act, Auditor-General Edward Ouko has no powers to hire, promote and fire staff without consulting the Public Service Commission (PSC) and power to negotiate his office’s budget directly with Parliament.
“Parliament would be acting against the constitution if it extends the mandate of the Transition Authority,” said Meru Governor Munya on Thursday in Nairobi.
The Coalition for Reforms and Democracy (CORD) has said it will challenge in court changes to laws on the appointments of the chief justice, his deputy and top police bosses and the move to weaken the Auditor Generals’ office.
Senate Minority Leader Moses Wetang’ula said it is an attack on the Constitution that allows independence of institutions.
“We believe that the intention of weakening the office of the Auditor General and to create parallel centres of authority within that office is to whitewash and sweep under the carpet national accountability,” stated Wetang’ula.
On the other hand, The Council of Governors (CoG) has resisted any attempts to extend the mandate of the Transition Authority (TA) saying it is “unconstitutional” and must be disbanded as threat devolution.
CoG Chairman Mr Peter Munya argued that any remaining duty can be ably handled by the Inter-Governmental Relations Committee.
This came when Devolution Cabinet Secretary Mwangi Kiunjuri had said the term of TA which expire on March 4, 2016 should be extended.
However, the authority had sought more three years, saying its work was not yet done but Kiunjuri suggested it extended by a year.
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