The Azimio One Kenya Coalition has made good their threat and sued president William Ruto over the alleged violation of the constitution in the formation of a Commission of Inquiry to probe the controversial mass massacre in Shakahola Forest in Kilifi county.
According to documents filed in court, Azimio claim that only parliament can establish a tribunal through an Act of Parliament.
The coalition argues that the president’s action would interfere with the independence of the Commission of Inquiry as they will report to him.
The Azimio brigade led by opposition leader Raila Odinga accuse the president for allegedly usurping the powers of among others the Director of Public Prosecutions, the Judiciary and Parliament.
Azimio’s lead lawyer Paul Mwangi argues that Ruto has hijacked the criminal justice system without powers to do so.
“The action in constituting the Commission of Inquiry is interfering with the independence of the Judiciary under article 161 of the Constitution of Kenya which provides that “In the exercise of judicial authority, the Judiciary shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.” The documents add in part.
Besides the president, Azimio has also sued the Attorney General, Speaker of National Assembly, Inspector General of Police, the National Intelligence Service, DPP and PSC.
On the other hand, the Kenya National Human Rights Commission and Commission on Administrative Justice (CAJ) have been listed as interested parties.
The controversial commission of inquiry formed even before the recovery of bodies is yet to be completed will be chaired by Lady Justice Jessie W. Lesiit and feature Lady Justice (Rtd) Mary Kasango, politician Eric Gumbo, Bishop Catherine Mutua, Jonathan Lodompui, Frank Njenga Dr Wanyama Musiambu and Albert Musasia.
Lawyer Kioko Kilukumi will be the lead counsel assisted, by Vivian Janet Nyambeki and Bahati Mwamuye. Joint Secretaries will be Oliver Kipchumba Karori and Rachel Maina.
“The mandate of the Commission of Inquiry shall be to inquire into the matter of the deaths, torture, inhumane and degrading treatment of members and other persons linked to the Good News International Church in Kilifi County,” their TOR reads.
They will also inquire into the legal, institutional, administrative, security, and intelligence lapses that may have contributed to the killings and recommend specific actions that should be taken against those responsible including admonition, regulatory actions, reparations, or criminal investigation.
The team will recommend legal, administrative, or other forms of accountability action against any public official whose actions or omissions are established to have willfully or negligently contributed to the occurrence of the massacre.
Also, to inquire into the factors that led to the rise of that particular religious’ extremist institution and suggest reforms to prevent the recurrence of the same. Both teams, whose mandates appear to overlap in a way, have six months to complete their tasks.
In setting up the inquiry, Ruto said the scale of the death toll and the depravity of the actions committed against fellow citizens in Shakahola had shaken the consciousness of the nation and brought to the fore the reality of the existence of cults of serious harm to Kenyans.
President Ruto invoked Section 3 (1) of the Commissions of Inquiry Act (Cap. 102) that informed his decision.
However, the Azimio leaders assert that the appointments are unconstitutional as it will also subject those implicated to double criminal process.
In his supporting affidavit, Raila argues that the President is acting the judge, the jury and the executioner as his appointees are likely not to give a fair verdict.
According to him, the appointment for a judge or a magistrate should be by the CJ while the lead lawyer should be under the DPP.
At the same time, he argues a commission cannot force the Public Service Commission (PSC) to discipline any public official found culpable or negligent.
He accuses Ruto of overreach, stating that he is now forcing independent offices to conduct their work.
The former Prime Minister has listed at least 13 prayers, among them to declare the appointments as unconstitutional and disband the team.
He wants the Commission of Inquiry Act used by the president to form the commission of inquiry into the Shakahola tragedy declared unconstitutional, null, and void as it contradicted the constitution and contributed towards tilting the impartiality of judicial officers who may be enticed by the appointments and thereby give favourable rulings on cases targeting the executive.
With the president appointing lady justice Jessie Lesit as the chairperson of the commission, Raila argued that the president undermined the authority of the judiciary as the judge did not have the blessing of either the Chief Justice or the Judicial Service Commission.
