- "The President can only exercise the powers and responsibilities bestowed on him and cannot arrogate to himself any of the powers assigned to any other arm or Independent Office or Commission," the Judge said.
- Azimio filed the case in court last year and named the President, the National Intelligence Service, DPP, and the Speaker of the National Assembly among others as respondents.
Image: FILE
The High Court has quashed a gazette notice made on May 4, 2023, by President William Ruto that established a commission of inquiry into the Shakahola Tragedy.
Justice Lawrence Mugambi said the President's action in establishing the commission undermined the powers assigned to other constitutional institutions and state organs.
"The President can only exercise the powers and responsibilities bestowed on him and cannot arrogate to himself any of the powers assigned to any other arm or Independent Office or Commission," the Judge said.
Azimio filed the case in court last year and named the President, the National Intelligence Service, DPP, and the Speaker of the National Assembly among others as respondents.
They argued that the formation of the inquiry was usurped and undermined the authority of the National Intelligence Service to seek to investigate the intelligence lapses in the saga.
The opposition outfit explains that only the NIS is responsible for security intelligence.
It further asserts that only Parliament can establish a subordinate court or an independent tribunal through an Act of Parliament.
The President had appointed Justice Jessie Lessit and others to the commission. She was to head it.
But Justice Mugambi said Section 3 of the Commission of Inquiry Act allowing the President unrestricted discretion to appoint a Judge doesn't align with the constitutional principle of separation of powers.
He agreed with arguments made by Azimio that the same is a threat to the independence of the Judiciary.
"To that extent, Section 3 of the Commission of Inquiry Act is unconstitutional. It is not aligned with the current constitutional principles on separation of powers and independence of the Judiciary," he said.
Head of Public Service Felix Kosgei had sworn an affidavit in court before the appointment of Justice Lessit to the said commission stating that the President consulted with the Chief Justice.
But Mugambi said Section 3 of the Commission of Inquiry Act does not oblige the president to consult.
On May 4, 2023, the President through a Gazette Notice established a Commission of Inquiry into the Shakahola Tragedy.
"The team will establish the circumstances under which the deaths and inhumane torture occurred," the gazette notice said.
The mandate of the commission of inquiry was to inquire into the deaths, torture, and inhumane and degrading treatments of members of the Good News International Church.
The commission would also inquire into the factors that led to the rise of that particular religious extremist institution and other formations that foster negative religion-based activities.
What followed was the petition filed by Azimio.