Dr. Obwogo in an opinion article titled, “Constitution is Clear on Separation of Powers,” writes, “The Constitution is also clear about the process of appointing a tribunal to investigate the conduct of JSC members. Therefore, the President erred in purporting to set up this tribunal and the High Court was right to step in and stop it.” Dr. Obwogo however does not show how the President erred or which constitutional laws gave the high court the power to establish a the court order. A constitution is as a set of fixed agreements, that become laws once constituted by those constituting them. Based on this definition, here below, analysis on constitution order, Kenya Constitution distribution of powers for sustenance of Kenyans and 7 reasons why Dr. Obwogo scores “F” Failure on his Kenya Constitution opinion article.
Article by Dr. Obwogo referenced Constitution is Clear on Separation of Powers
Constitution Order
A constitution order is a law written in a constitution. For the purpose of the case of Judicial Service Commission JSC we shall concentrate on the Kenya constitution orders established by Kenya Constitution article 251 as follows:
251 (1) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for— (a) serious violation of this Constitution or any other law, including a contravention of Chapter Six; (b) gross misconduct, whether in the performance of the member’s or office holder’s functions or oherwise; (c) physical or mental incapacity to perform the functions of office; (d) incompetence; or (e) bankruptcy.
251 (2) A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground.
251 (3) The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President.
251 (4) On receiving a petition under clause (3), the President— (a) may suspend the member or office holder pending the outcome of the complaint; and (b) shall appoint a tribunal in accordance with clause (5).
251 (5) The tribunal shall consist of— (a) a person who holds or has held office as a judge of a superior court, who shall be the chairperson; (b) at least two persons who are qualified to be appointed as High Court judges; and (c) one other member who is qualified to assess the facts in respect of the particular ground for removal.
251 (6) The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act in accordance with the recommendation within thirty days.
251 (7) A person suspended under this Article is entitled to continue to receive one-half of the remuneration and benefits of the office while suspended.
The Kenya constitution direct orders are 252 (2) that authorizes any Kenya citizen to accusation a person in any commission. This constitution requirement was fulfilled in the JSC case. Kenya Constitution order 252 (3) requires National Assembly to hear and send to President. This was followed. The President is then ordered to perform Kenya Constitution article 253 (4). President Uhuru Kenyatta did so.
Dr. Obwogo should clearly show the Kenya Constitutional laws the President Uhuru Kenyatta erred on.
Kenya Constitution Distribution of Powers for Sustenance of Kenyans
Dr. Obwogo writes, “Constitutionally, the formal separation of powers between the legislative, executive, and judicial authority is meant to distribute powers between the different arms and ensure that power is not concentrated in a few hands. This also means that the various branches are not supposed to interfere with the exercise of one another’s powers.”
Many Kenyans may not understand the complex systems that are today Kenya constitution; however, Kenya constitution best establishes the, “Separate Powers,” or a better term, “Distributes powers.” This is clearly done in the first article, Kenya Constitution Article 1
1. (1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.
1. (2) The people may exercise their sovereign power either directly or through their democratically elected representatives.
1. (3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution–– (a) Parliament and the legislative assemblies in the county governments; (b) the national executive and the executive structures in the county governments; and (c) the Judiciary and independent tribunals.
1 (4) The sovereign power of the people is exercised at–– (a) the national level; and (b) the county level.
Based on this Constitution Article 1, 100% power is assigned to every Kenyan as the “Sovereign power,” individually and collectively. Constitution law 1. (2) states this power maybe exercised directly or through democratically elected representatives. The 2nd assigned power is by constitutional law 1 (3.) (a) to the legislative arms of Government. The 3rd assigned power is by constitution laws 1 (3) (b) to Executive arms of Government. The 4th assigned power is by constitution article 1 (3) (c) to Judiciary and Independent tribunals.
Kenya constitution separates these powers very clearly. Further the 264 articles and 6 schedules define the roles of Adult citizens, legislative, Executive, Judicially, tribunals, Independent offices and Independent commissions shall perform.
The current problem in Kenya is more based on the fact that the culture of a few Kenyans wanting to become billionaires through constitutional offices be it legislative, executive, judicial or independent arms will do anything.
7 Reasons Why Dr. Obwogo gets an “F” when representing Kenya Constitution
Dr. Obwogo in establishing his opinion does not consider that every written constitutional article and clause is a constitution law. And further does not establish that constitution laws are also orders established by the total population collectively, “Sovereign Power.” Thus Kenya constitution article 251 is a direct constitutional order by the current estimated 44 million Kenyans. How a court order by one judge can stop a constitution order ordered as a fixed law is the intellectual capacity today lacking in the persons representing Kenya constitution.
Dr. Obwogo uses the separation of powers to justify why the Kenya Constitution order created by Constitutional Law Article 251 was stopped by a court order. Whereas Dr. Obwogo does not mention the constitution law applied; the only constitution law that a high court judge issuing the court order could apply is Kenya Constitution article 165 (7) that states, “For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.” Clause (6) referenced reads, “The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.” The two words that Dr. Obwogo failed to take note are, “Superior Court.” Many intellectuals fail to understand that when the constitution coverts an institution, the constitution creates, to a court to hear cases based on those holding constitution offices; this court automatically becomes a constitution court. Further once a constitution court is created it becomes a superior court equivalent to the Supreme Court based on the supremacy of constitution. For example, If National Assembly seats to impeach the president and thereafter the senate to confirm, the two bodies would serve as constitution courts. If Dr. Obwogo opinion was to hold then similarly parliament when enacting article 144 and 145 could be stopped by a high court order.
Dr. Obwogo when stating the president erred does not say how the President disobeyed the Kenya constitution law when performing what the Kenya constitution orders through Kenya constitution article 251 (4) law.
Dr. Obwogo fails to clearly recognize that the constitution laws for removal of constitution office holders are all constituted inside the constitution. Indeed, Kenya Constitution sets different methods of removal of persons holding constitution office before term ends. A legislative member can be recalled as set up be Constitution law 104. President and Executive by impeachment through legislative arms, Assembly and Senate becoming Constitution Courts one for indicting and other for investigation and ruling. Judicial judges are removed through Judicial Service Commission becoming the indicting constitution court and thereafter President appointing tribunal as the investigation and final ruling constitution court. Independent Commissions based on National Assembly becoming the indicting constitution court and President setting tribunal as the investigation and final ruling constitution court.
Dr. Obwogo writes, “…it was wrong for Parliament to seek to establish or to even debate a proposal that a tribunal be appointed to investigate the members of the JSC against a court ruling.” Dr. Obwogo should read 251 (2) that orders the following, “A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground.” Rather than Dr. Obwogo state that any member of parliament is wrong; Dr Obwogo should use a pen to advice what a member of parliament should do once a citizen brings a case based on Kenya Constitution article 251 (2), above, and with consideration the citizen is also guided by Kenya Constitution article 3. (1) “Every person has an obligation to respect, uphold and defend this Constitution.” There is no doubt the person who brought the accusations did so based on vengeance; however, the Kenya constitution does not state who should bring the accusation. As per Kenya constitution the six JSC members stand indicted by Kenya constitution. The faster they let the next article clear their names the faster Kenya sovereign power will be served.
Dr. Obwogo writes, “It is wrong, therefore, to argue that because Parliament is elected by the people, it was wrong for the courts to halt the debate. The court has powers, in a legal dispute, to determine the law and to apply it in the resolution of a dispute. It was wrong for Parliament to disobey the High Court ruling. Instead, Parliament should have appealed this decision in a higher court. Moreover, Parliament is not a “supreme organ” just because it is elected by the people.” In this opinion Dr. Obwogo fails to understand the main fundamental principal of constitution creation. Kenya constitution article 1 (2) “The people may exercise their sovereign power either directly or through their democratically elected representatives,” is the fundamental principal of constitution creation. The words, “Democratically elected representatives,” is the reason many roles are given to parliament and the President. Secondly Dr. Obwogo errs in using the word “Parliament,” rather than “National Assembly.” Rather than use the words like “wrong,” Dr. Obwogo should concentrate on Kenya constitution article 251 (3). As noted earlier once Kenya constitution converts the National Assembly to become a Constitution court, the court becomes a supreme court based on supremacy of constitution and is not subject to junior courts it creates. The constitution also keeps on check persons assigned to the role investigators and jurors when indicting or even passing judgement to the Presidency and Independent commissions office holders through Constitution article 104 (1) “The electorate under Articles 97 and 98 have the right to recall the Member of Parliament representing their constituency…” This article ensures that public can also make their voice heard. For example if JSC members were indicted unfairly the MPs who voted could be subjected to recall if this was the wrong thing. Further this action could also give more evidence to the tribunal investigating and passing the final ruling. Similarly if parliament fails to act on a constitution order the MPs can be recalled. When 104 is applied the sovereign power as established in article 1 (1) is achieved.
Dr. Obwogo fails to see the interest created when a high court judge issues a court order on behalf of JSC members. Kenya constitution article 168 (2) states “The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.” This article converts JSC to become a Constitution Court that indicts a judge. If a judge can use a court order that stops JSC members from constitution 251; what is to deter the JSC members from closing their eyes to the Judges failings. The Dr. Obwogo interpretation creates a system that has no checks and balance and can be misused by judges and JSC members. A constitution that can entrap itself is a weak constitution. Kenya constitution is not weak! The persons weakening Kenya constitution are persons like Dr. Obwogo who fail to thoroughly understand these complex systems before penning down opinions.
Dr. Obwogo maybe competent in the field awarded a doctorate; but, in the constitution systems the arguments presented fail to achieve the intellectual ability of understanding the principles a constitution. The systems of governance: Executive, Judicial and Legislative, are not Kenya innovations; these are systems that have evolved over thousands of years. Indeed, Kenya constitution borrows heavily on good working constitution that provide quality life for those who constitute the constitution. However, Kenya constitution cannot work if those who want to represent Kenya constitution intellect do shoddy work like Dr. Obwogo.
There are indeed many missteps that have happened during Kenya constitution 2010 implementations. The Presidency is not blameless with consideration President Uhuru Kenyatta signed division of revenue bill without senate agreement and indeed many bills signed to law may not meet Kenya constitution law 110 standard. The court order that stopped the teachers strike could be debated to have violated constitutional right granted by constitution law 41 with consideration a court order cannot regulate a right. The media bill passed and signed could have laws that violated of freedom of expression rights established in Constitution laws 33 & 34. Parliament influencing the setting of the member salaries instead of SRC determining the fiscally sustainable wage bill independently interfered with constitution law article 230 and could have violated constitution law 116 (3.) The court order stopping JSC process violates Kenya constitution law 251.
Respecting, upholding and defending Kenya constitution so the constitution can empower Kenyans and institutions to find solutions that sustain them is something every Kenya should take seriously. Whereas we do not claim to be the intellectual voice of constitution we however will continue advancing the debate by challenging decisions and opinions that can be harmful to Kenya constitution and thereby Kenya future. Currently the opinion on constitution interpretation by Dr. Obwogo does not help achieve a better Kenya for 44 million and growing. Dr. Obwogo is right to say, “Clearly, we should not use the Constitution in the same way a drunk uses a lamp post; more for support than illumination.” However, Kenyans should not follow blindly opinions that misrepresent and weaken Kenya constitution. Based on our explanations above we unfortunately give Dr. Obwogo an “F,” Fail.
Article by Dr. Obwogo. Constitution is Clear on Separation of Powers
-Jamhuri Magazine
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