BY SAM ALFAN.
A simmering battle brews pitting the courts and Parliament after the former broke into MPs amnesty.
The High Court this time declared unconstitutional some sections of Parliamentary Powers and Privileges Act.
“A declaration is hereby issued decreeing that section 7 and 11 if the Parliamentary Powers and Privileges Act (No.29 of 2017) are inconsistent with and contravenes Articles 1,2,3,10,19,20,21(1), 22,23,24,48,50,93 (2),94(4), 159, and 158 of the constitution of Kenya 2010” Justice John Mativo said.
The 29 page judgment further declared null and and void and 11 of the Parliamentary Powers and Privileges Act (No. 29 of 2017).
The judge declared various sections of parliamentary privileges unconstitutional and therefore null and void.
Delivering a Judgement in a petition filed by former Law Society of Kenya boss Apollo Mboya, the judge noted that various clauses offends the principles of the constitution.
Apollo Mboya as a petitioner dealt a mortal blow to parliamentary powers and privileges and justice's Mativo's judgment delivered today is a jurisprudential milestone…@MboyaApollo @makaumutua @WMutunga @bettymurungi
— Ahmednasir Abdullahi (@ahmednasirlaw) May 21, 2018
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 said.
The judge further said that, the primary duty of the court is to uphold the constitution and the law which it must apply impartially and without fear, favour or prejudice.
The ruling of Justice Mativo must be challenged. Committees exercise powers akin to the High Court under Article 125 .They sit on behalf of the House and have no proprietary interest in the agenda . The inviolability of the Parliament is a tradition & usage the world over?♀️
— Sen Mutula KilonzoJR (@SenMutula) May 21, 2018
The judge also noted that, in the process of court performing their constitutional duty, court intrude into the domain of other arms of government, that is an intrusion mandated by the constitution.
“What courts should strive to achieve is the appropriate balance between their role as the ultimate guardians of the constitution and the rule of law including any obligation that parliament is required to fulfill in respect of the passage of laws, on the one hand, and the respect in which they are required to accord to other arms of government as required by the principal of separation of powers,” he held.
In the petition, Mr Mboya challenged the parliamentary law saying it granted lawmakers “super immunity.”
He faulted the law, which also gives county assemblies similar immunity, for elevating lawmakers to be beyond scrutiny even when there is violation of the Constitution.
Mr Mboya sued the National Assembly and the Senate and wanted three sections of the Parliamentary Powers and Privileges Act, 2017, declared null and void as well as inconsistent with the Constitution.
He argued that the end result of that law is to lock out even courts from questioning proceedings or decisions of Parliament.
President Uhuru Kenyatta assented to the law that gave MCAs immunity just like their counterparts in Parliament in March.
The said law lists the precincts of county assemblies as a beneficiary of the privileges and immunity of members including protection of proceedings from court action.
