Saturday, March 5, 2011

Kabogo bid to stop JSC from carrying out its work flops

By Evelyn KwambokaAn attempt by a Member of Parliament to stop the Judicial Service Commission from executing its mandate has failed.
The commission will now go ahead with its plans to appoint former Chief Justice Evan Gicheru’s replacement, as the country awaits Attorney General Amos Wako’s advice on how errors in the Constitution can be corrected.
The errors in the constitution touch on clauses referred to in the Sixth Schedule in the appointment of JSC members.
"It is unfortunate that the errors now being pointed out by the petitioner were not realised by Parliament and the AG before the Constitution was promulgated," Justice Daniel Musinga said, in his ruling yesterday.
Conservatory orders
Declining to issue interim orders stopping JSC from performing its functions, Justice Musinga said the CJ’s post has been vacant since February 27, when Gicheru retired.
"The commission ought to proceed with its functions as usual, pending determination of is constitutionality. I decline to grant conservatory orders as sought, but direct that this application and petition be heard and determined," the judge ruled.
The CJ’s post has been advertised in the local dailies. The error touching on the clause, the court said, was as a result of typing.
"The error is contained in the transitional and consequential provisions of the Constitution and to the extent that the intent and purpose is not lost, it is my considered view that the error cannot invalidate otherwise lawful appointments," the judge said.
On the five-year term given to JSC members by President Kibaki, the judge said this would be corrected by amending the gazette notice.
Juja MP William Kabogo had wanted the JSC stopped from executing its mandate, pending hearing and determination of the case.
Kabogo asked the court to issue interim orders stopping JSC members, led by Justice Riaga Omolo, from carrying out their duties.
"If JSC members are allowed to appoint the new CJ, it would be an illegality," he said.

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