BY SAM ALFAN.
The High Court has given the greenlight to Senior Counsel Ahmednassir Abdullahi to prosecute his constitutional petition against exclusion before the Supreme Court.
Justice Chacha Mwita says the High Court enjoys original jurisdiction to determine all grievances relating to infringement and violations of constitutional rights and freedoms.
All parties to constitutional petitions deserve to be heard on merits, he said.
The Judge reiterated it is a cardinal principle in the Constitution that complaints of violation of fundamental rights and freedoms must be ventilated and adjudicated upon.
The Law Society of Kenya (LSK) has challenged the indefinite ban pronounced by the Supreme Court on January 18, blocking Ahmednassir, his law firm and associates from making any appearance or representation before the court.
Justice Chacha Mwita dismissed a preliminary objection by the seven-member Supreme Court that it’s indefinite ban on Ahmednassir, his law firm and associates was final.
The Supreme Court, chaired by Chief Justice Martha Koome, wanted the petition dismissed on grounds that it enjoyed immunity under the Judicature Act and the Constitution.
The Supreme Court Judges had argued they cannot be sued for discharging their judicial duties. Further, orders given by courts of higher jurisdiction cannot be adjudicated downwards, they had claimed.
The apex court had claimed that hearing the case before the High Court would result in the subversion of the Constitution and create an absurdity and embarrassment to the judicial system in the country.
However, the LSK has maintained that the decision by the Supreme Court was against rules of natural justice since Ahmednassir was not afforded an opportunity to be heard. The action was unconstitutional, unreasonable and contrary to the law, LSK said in court papers.
In his ruling, Justice Chacha Mwita said the court will decide whether the action complained of and the issues raised by the Supreme Court are inconsistent with the provisions of the Constitution.
“My view is that the issues raised in the petition are not idle. They fall within the ambit of Article 23(1) and 165(3)(b) of the Constitution and, therefore, under the jurisdiction of this court. The court has to determine whether, indeed, constitutional rights and fundamental freedoms have been violated or threatened to be violated,” Justice Chacha Mwita said.
Ahmednassir, in his supporting affidavit, has protested that the pronouncement by the Supreme Court denying him audience was not a judicial decision but an administrative action. There were no judicial proceedings that preceded the punitive measure that must be quashed, he said.
Already, Ahmednassir has lodged an appeal before the Arusha-based East African Court of Justice that is pending hearing.
