Court freezes Commission of Inquiry after Azimio petition

shakahola bodies

Bodies exhumed from mass graves in Shakahola forest, Kilifi County are loaded into a vehicle during the operation on May 12, 2023.

Photo credit: Kevin Odit | Nation Media Group

What you need to know:

  • High Court judge Lawrence Mugambi noted that other bodies, including the police, Senate and Kenya National Commission on Human Rights (KNCHR) were carrying out investigations into the matter, all of which were using public resources.

The High Court has stopped the Commission of Inquiry into the Shakahola tragedy, pending the determination of a petition filed by the Azimio la Umoja One Kenya Coalition, led by opposition chief Raila Odinga.

High Court judge Lawrence Mugambi noted on Mondayi that other bodies, including the police, Senate and the Kenya National Commission on Human Rights (KNCHR) were carrying out investigations into the matter, all of them using public resources.

The coalition filed the case challenging President William Ruto's appointment of the eight-member team, arguing it is illegal and amounts to an usurpation of powers vested in State other organs by the Constitution.

Justice Mugambi ruled it would not be in the public interest to allow the sittings, where the commission chaired by Appelate judge Jessie Lesiit would spend public resources only for the court to later determine that the commission was unconstitutional.

“Is it in the public interest to allow the Commission of Inquiry to start its sittings at the public expense, before resolution of the constitutional challenges presented? My answer is that it is not,” the judge said. 

Dr Ruto appointed the commission on May 4 and named Justice Lesiit as the chairperson, to investigate the deaths, torture, inhumane and degrading treatment of members of the Good News International Church in Kilifi, led by Paul Mackenzie, described as a cult leader.

The opposition coalition said the decision to form the commission was in contravention of the Constitution as it would usurp the powers of other State agencies and statutory bodies.

The judge noted that the KNCHR had expressed its intention to become a co-petitioner in the case, arguing that President Ruto took away its mandate by appointing the commission.t

The rights group submitted that it had the mandate to investigate violations of human rights and make recommendations yet the function had been assigned to a taskforce.

It informed the court that it was already on the ground in Kilifi, executing that mandate, and that allowing the commission to proceed with the probe would amount to undermining its mandate.

The court was also informed that the police were also carrying out investigations under the guidance of the office of the Director of Public Prosecutions (ODPP).

“My humble view is that the intervention of the court can be invoked where it is demonstrated that a particular action or decision is a potential threat to the values and principles of constitutional democracy for that is what sustains a nation,” the judge said.

Azimio argued that the move to appoint the commission underminedd the command of Inspector-General of police Japhet Koome, who is not only required to carry out investigations but also forbidden from taking orders from anyone regarding who to investigate.

The petition also accuses Dr Ruto of empowering his personal nominees to undermine the constitutional mandate and authority of constitutional institutions and State organs.

The commission is expected to establish the circumstances under which the deaths, torture and inhumane and degrading treatment took place.

“That section 3 of the Commission of Inquiry Act is unconstitutional and the entire Act is null and void as it gives the President power to determine who will carry out judicial duties,” Mr Odinga says in affidavit.

Lawyer Paul Mwangi, for the opposition coalition, submitted that Parliament can establish a subordinate court or an independent tribunal by an Act of Parliament and that the Judiciary is empowered by the Constitution to recruit qualified persons to serve in the courts.

The petition goes on to say that the appointment of Justice Lesiit as chairperson of the commission exposes the Judiciary to embarrassment because it was made without consultation with Chief Justice Martha Koome and the judge will work under the supervision and jurisdiction of the High Court.

"The precedent that will be set by not declaring the Commission of Inquiry Act unconstitutional is that the President will now and in the future be able to entice sitting judges of the Judiciary with appointments to commissions of inquiry and other executive appointments and thereby influence judges with perks that will create bias in such judges when they sit in judgement on actions of the executive in cases that come before them," Mwangi said.