The decision by High Court Judge Hon. L. N. Mugambi on the Shakahola Tragedy has definitely caught the public’s attention. This ruling dives deep into how presidential power and institutional independence interact, offering us some crucial insights into how our Constitution is meant to work.

What the Court Addressed

  1. Did the President Go Too Far?: The President’s move to set up a Commission of Inquiry into the Shakahola Tragedy has been challenged. The Court had to decide if this step was an overreach, stepping on the toes of the Kenya National Commission on Human Rights (KNCHR).
  2. Constitutional Principles at Play: The Court relied on the principle generalia specialibus non derogant—basically, general laws shouldn’t override specific ones. This principle was central to the ruling, stressing that broad executive powers shouldn’t overshadow the specific roles assigned to other institutions.
  3. What About Judicial Independence?There were serious concerns about the President’s power to appoint commissioners, including judges, as per the Commission of Inquiry Act. The Court flagged that such powers could threaten the independence of the judiciary.
  4. Time for Legal Changes?The Court’s decision suggests it might be time for lawmakers to revisit and revise the Commission of Inquiry Act. This reform would help ensure that the act aligns with Kenya’s 2010 Constitution and protects the roles of independent bodies from excessive executive control.

Key Takeaways

  1. Presidential Limits: The ruling makes it clear that the President’s actions need to respect the roles and responsibilities assigned to other constitutional bodies. It’s a reminder that no one branch of government should overstep its bounds.
  2. Respecting Constitutional Boundaries: By highlighting the principle generalia specialibus non derogant, the Court is reinforcing the need to respect the specific functions of different institutions. This balance is crucial for maintaining effective governance.
  3. Protecting Judicial Independence: The Court’s concern about the President’s broad powers to appoint commissioners reflects the need to safeguard the judiciary’s independence. It’s a call for ensuring that appointments are made in a way that upholds impartiality and fairness.
  4. Call for Legislative Reform: The decision is a wake-up call for lawmakers to update the Commission of Inquiry Act. The goal is to create a legal framework that maintains the separation of powers and ensures that independent bodies can operate without undue interference.

 

In Summary

This ruling on the Shakahola Tragedy is more than just a legal decision; it’s a significant step in upholding Kenya’s constitutional principles. It underscores the importance of keeping our democratic structures in check and protecting the balance of power.

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Author: Elaine A. Kihungi

Associate – Head of Dispute Resolution