Ibrahim Swaleh v The Speaker, County Assembly of Embu, The Clerk, County Assembly of Embu & The County Assembly of Embu [2015] KEHC 1378 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CONSTITUTIONAL PETITION NO. 1 OF 2015

IBRAHIM SWALEH.................................................PETITIONER/APPLICANT

VERSUS

THE SPEAKER, COUNTY ASSEMBLY OF EMBU….............1ST RESPONDENT

THE CLERK, COUNTY ASSEMBLY OF EMBU….............…2ND RESPONDENT

THE COUNTY ASSEMBLY OF EMBU………….............……3RD RESPONDENT

R U L I N G

This is a ruling on the preliminary objection dated 18/3/2015 raised by the respondents against the petition filed on 4/3/2015. The basis is that this court does not have jurisdiction in view of the provisions of the section 4, 12, and 29 of the National Assembly (Powers and Privileges) Act which involves interpretation of the Standing Orders of the County Assembly of Embu and the powers of the Speaker of the County Assembly.

The respondents were represented by Mr. Njenga of Muchoki Kangata Njenga & Company Advocates while the petitioner's counsel was Mr. Njoroge of Njuguna & Njuguna Company Advocates. It was submitted by the respondents' that this court has no jurisdiction to determine the petition and that the petition dated 4/3/2015 should be struck out. The subject matter entails a challenge of the decision of the 1st respondent in his capacity as the Speaker of the County Assembly of Embu. The speaker applied the Standing Orders of the Assembly on a matter that arose in the course of the proceedings in the house. The court has no jurisdiction to hear this petition in view of the provisions of Section 4, 12 and 29 of the National Assembly (Powers and Privileges) Act.

The respondents further argued that whenever a question of jurisdiction is raised, the court has to determine it before it hears the substantive dispute. This is because it is the jurisdiction of the court that gives it capacity to admit a matter for hearing. The respondent cited the case of OWNERS OF THE MOTOR VESSEL ''LILIAN S'' VS CALTEX OIL (KENYA) LTD [1989] KLR 1 which was cited the case of SEVEN SEAS TECHNOLOGY LIMITED VS ERIC CHEGE [2014] eKLR.

The respondent further states that the petition was filed after one Member of the County Assembly (MCA) on 27/11/14 sought guidance from the speaker on the question of the procedure applicable in the removal of a person elected as an acting speaker under Article 178 of the Constitution and Section 9 of the County Governments Act 2012. The respondent further argued that on 24/2/2015, the Speaker who is mandated under Article 178 to preside over the assembly gave directions by way of a ruling on the application of Standing Order number 59 to the effect that the same does not apply in the matter of the removal of the Deputy Speaker. On 3/3/2015 the said MCA filed a notice of motion seeking removal of the petitioner from the position of the Deputy Speaker. The petitioner alleged that the 1st respondent's decision and direction constituted breach of his constitutional rights and has thereby filed the present motion. It is clear that the petitioner is aggrieved by the decision of the Speaker and is by way of the present petition seeking to set the said ruling aside. In essence, the petition is an appeal from the decision of the Speaker County Assembly of Embu.

The respondent further argued that the proceedings of the County Assembly are privileged and cannot be subject of an appeal in court. These were County Assembly proceedings within the chamber and within the meaning of the National Assembly (Powers and Privileges) Act. The respondent further submitted that the court has no jurisdiction to review the same as the absolute privilege of assembly proceedings is provided under Article 196 of the Constitution.

The respondents also cited the provisions of section 4 and 29 of the National Assembly (Powers and Privileges) Act. The petitioner herein is the Deputy Speaker of the National Assembly and had the forum to present his interpretation of the applicable standing order before the Speaker gave a decision.

It was argued by the respondent that the jurisprudential underpinning of powers and privileges of Parliament and County Assemblies is the expression of the principle of separation of powers. The court has a duty to enforce the law that ensures that debate in the assemblies is not fettered by the threat of civil or criminal prosecution. The standing orders to guide the house on issues cannot be challenged in court. The current petition is couched as an action for fundamental rights but in essence it is an appeal against the decision of the speaker.

The respondent cited several cases but only attached the following;

1. PETER O NGOGE V FRANCIS OLE KAPARO & 4 OTHERS [2007] eKLR where the court held that

''any such inclination to demand an inquiry into every time there is a bare allegation of constitutional violation would clog the court with unmeritorious constitutional references which would in turn trivialize the constitutional jurisdiction and further erode the administration of justice by allowing what is plainly an abuse of court process. Where facts as pleaded in this case do not plainly disclose any breach of fundamental rights or constitutional, there cannot be a basis of any inquiry'”.

On the issue of parliamentary proceedings, the court explained that an invitation of court to intervene in a matter of an election of a speaker which is clearly regulated by the standing order is a breach of the Constitution. It is not the business of the court to interfere with the internal arrangement of Parliament. The internal arrangements are those normally regulated by the standing orders of the house.

2. HAITHAR HAJI ABDI & ANOTHER V SOUTHERN DEVELOPERS LTD & 3 OTHERS [2012] eKLR where the court heldthe fact that this matter comes before this court as one to enforce fundamental rights and freedoms does not change the nature of the matter'.

3. OKIYA OMUTATAH OKOITI & 3 OTHERS V ATTORNEY GENERAL & 5 OTHERS [2014] eKLR where the court held that according to the Constitution Parliament has a major role in running the affairs of this country.

“In order for Parliament to operate effectively, there is need to ensure that there is free debate on the floor of the two houses. That is where the immunity of parliament debate comes from.......Members of parliament can debate anything under the sun......The court cited the case of Canada (House of Commons) vs Vaid [2005] 1 SCR where the court held..........members of parliament should not look over their shoulders when conducting debates in parliament. They must express their opinion without fear. The court should be hesitant to interfere except where in very clear circumstances in matters that are before the two houses of parliament and even those before the county assemblies''

The petitioner submitted that the court is clothed and possesses the jurisdiction to determine this matter. It was contended that the preliminary objection does not have any merit. Article 165(3)(d)(ii)and (iii) of the constitution provides that the high court has jurisdiction to hear any question respecting the interpretation of the constitution including the determination of the question whether anything said to be done under the authority of the constitution or any law is inconsistent with the constitution and any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government. The said article has given the High Court powers to preside over the anything done under the constitution.

The petitioner further submitted that Section 29 of the National Assemblies (Power and Privileges) Act specifically provides that the speaker shall not be subject to the jurisdiction of any court in respect of his powers vested by the Act or standing orders. Based on this provision, the respondents' argument that the doctrine of parliamentary privileges ousts the jurisdiction of this court is a misdirection. The petitioner argued that the act of parliament that gives this privilege is subsidiary to the constitution and therefore the Constitution prevails. The court is mandated to inquire into the constitutionality of any action of the Speaker and the county assembly by dint of Article 165 (3)(d) of the constitution.

Section 159(1) of the Constitution provides that judicial authority is derived from the people and shall be exercised by the courts and tribunals established under the constitution. The petitioner argues that the court cannot therefore sit and watch as disputes delineate under the constitution. In conclusion, it was submitted that the speaker abrogated his powers and acted ultra vires. The court has jurisdiction to question the legality and validity of acts of the 1st respondent. The court cannot exercise restraint where there is a clear violation of the constitution.

The statutory privilege created under the Act does not extend to ultra vires acts but is subject to the Constitution. The speaker cannot be allowed to act arbitrary by violating the political rights of the petitioner provided for under Article 38 while the court sits aside in silence. The petitioner cited several cases but attached the following;

JOHN KIPNGENO KOECH & 2 OTHERS VS NAKURU COUNTY ASSEMBLY & 5 OTHERS [2013] eKLRthe court held that the high court is the creature of the constitution and the only body that is empowered to determine the constitutionality or otherwise of the functions of other state organs . cited the case of SAMUEL KAMAU MACHARIA VS KENYA COMMERCIAL BANK LTD & 2 OTHERS [2012] eKLRwhere the supreme court held that

the court's jurisdiction flows from either the constitution or legislation or both …...Where the constitution confers upon parliament to set the jurisdiction of a court of law or tribunal the legislature would be within its authority to prescribe the jurisdiction of such court or tribunal by statute law.

NJENGA MWANGI & ANOTHER VS TRUTH JUSTICE & RECONCILIATION COMMISSION & 4 OTHERS [2013] eKLRone of the grounds upon which the PO was raised was that the High Court had no jurisdiction to hear an application against the speaker of the national assembly and leader of majority in respect of acts of their respective offices in exercise of the powers conferred and vested in them by the Constitution and the National Assembly (Powers and Privileges) Act and the Standing Orders. The court held that provisions of Article 22(1) enables every person the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been violated. Article 23(1) of the constitution provides the court with jurisdiction to hear and determine such applications and contains reliefs available to such a person. Article 165(1)(b) grants the court jurisdiction to hear and determine the violation of fundamental rights as contained in the bill of rights.

STEPHEN NENDELA VS COUNTY ASSEMBLY OF BUNGOMA & 4 OTHERS [2014] eKLR the court held that ''if any law, be it section 17 of the CGA read together with section 29 of the National Assembly(powers and privileges )Act or any other law, purports to oust the jurisdiction given to this court by Article 22(1) and 165(3)(b) and (d) of the constitution where there is an allegation of violation of the constitution or infringement or threat to violation of fundamental rights and freedoms, that law will be inconsistent to the constitution and will be null and void to that extent''.

FRANK MUSILA MAKOLA VS FELIX G MBIUKI & 4 OTHERS [2013] eKLRwhere the court held that an unconstitutional exercise of the executive or legislative power cannot be shielded from judicial scrutiny by reason of the doctrine of separation of powers.

NICK GITHINJI NDICHU VS CLERK KIAMBU COUNTY ASSEMBLY & ANOTHER [2014] eKLRthe court citing the decision of the Supreme court of Kenya in the case of the speaker of the senate(Advisory opinion No 2 of 2013 held and two other cases held that ''under article 165(3)(d) (I-iii) of the constitution this court has the jurisdiction to hear any matter relating to any questionwith respect to the interpretation of the constitution including the determination of;

i)the question whether any law is inconsistent with or in contravention of the constitutional

ii) the question whether anything said to be done under the authority of the constitution or any law is inconsistent with or in contravention with the constitutional

iii)any matter relating to constitutional power of state organs in respect of county government and any matter relating to the constitutional relationship between the levels of government

MARTIN NYAGA WAMBORA &3 OTHERS V SPEAKER OF THE SENATE & 6 OTHERS [2014] eKLRwhere the court of appeal held that ''we are of the view that Article 81 of the constitution as well as section 33 of the County Government Act and neither be interpreted as clauses that oust the supervisory jurisdiction of the High Court nor limit the power of the High Court to interpret Article 181 nor be construed as provisions that prohibit the right of a citizen to access a court of law where there is an allegation of infringement of a constitutional right to hold a public office under Article 38(3)(c) of the Constitution''

On perusal of the petition, it alleged there has been violation of the constitution as follows:-

That the ruling by the 1st respondent declaring the Standing Order No. 59 of the County Assembly of Embu a nullity violates Article 165(3)(d)(i)(ii) of the Constitution is ultra vires.

The 1st respondents ruling adversely affects the petitioner's right to hold a political office and violates Article 38(3)(c) of the Constitution.

The proposed removal of the petitioner does not conform to the law as laid down in the Standing Order No. 59 and is therefore a violation of Article 47 of the Constitution.

The 1st,2nd and 3rd respondents attempt to move and discuss the removal of the Deputy Speaker following the 1st respondent disregard of provisions of the standing order no 59 of the county assembly, violates Articles 10, 73, 160\91), 165(3)(d) (i,ii), 178(3), 259(1) of the Constitution

The 1st, 2nd and 3rd respondents move to discuss a motion for the removal of the petitioner is capricious, vindictive and vengeful and in violation of Article 19, 20, 22, 23, 28 and 50 of the Constitution.

It is important to first examine the relevant provisions of the law including those cided by the parties. Article 22(1) of the Constitution provides:-

Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.'

Article 23(1) of the Constitution provides:-

The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.'

Article 165(3) of the Constitution provides that;

Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191; and

e) any other jurisdiction, original or appellate, conferred on it by legislation.

Section 4 of the National Assembly (Powers and Privileges) Act provides:-

No civil or criminal proceedings shall be instituted against any member for words spoken before, or written in a report to, the Assembly or a committee, or by reason of any matter or thing brought by him therein by petition, Bill, resolution, motion or otherwise.

Section 29 of the National Assembly (Powers and Privileges) Act provides that:-

Neither the Speaker nor any officer of the Assembly shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or such officer by or under this Act or the Standing Orders.

The issue of jurisdiction generally was discussed in the case of OWNERS OF THE MOTOR VESSEL LILLIAN ‘S’ Vs. CALTEX KENYA LTD [1989] KLR 1where the court held:-

I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority.

The issue of the jurisdiction of the High Court to determine whether there is violation of the constitution was discussed in the case of JUDICIAL SERVICE COMMISSION VS SPEAKER OF THE NATIONAL ASSEMBLY & 8 OTHERS [2014] eKLRwhere the court held :-

The Constitution expressly mandates the High Court with jurisdiction to determine the question ..…whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution…

In the case of PETER GICHUKI KING'ARA VS INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS [2013] eKLRthe court of appeal citing the case ofSAMUEL KAMAU MACHARIA & ANOTHER VS KENYA COMMERCIAL BANK & 2 OTHERS - Supreme Court Civil Appeal (Application) No. 2 of 2011held thatJurisdiction is specified either by the Constitution or by Statute.

The issue of separation of powers is provided for by Section 117 of the Constitution as well as Section 12 and 29 of the National Assembly (Powers and Privileges) Act as read with Section 17 of the County Government Act. These sections put together provide that the court has no jurisdiction to question the validity of the proceedings of the National Assembly or the Committee of Privileges acting in accordance with the National Assembly (Powers and Privileges) Act.

Section 117 of the Constitution provides for powers and immunities of Parliament. It states that:-

1. There shall be freedom of speech and debate in Parliament.

2. Parliament may, for the purpose of the orderly and effective discharge of the business of Parliament, provide for the powers, privileges and immunities of Parliament, its committees, the leader of the majority party, the leader of the minority party, the chairpersons of committees and members.

Parliament is yet to enact the Powers and Privileges Bill 2014 into law which bill is intended to operationalize the provisions of Article 117 of the Constitution. The relevant law remains the National Assembly (Powers and Privileges) Act. Section 12 provides:-

No proceedings or decision of the Assembly or the committee of Privileges acting in accordance with this Act shall be questioned in any Court.

Section 29 of the same Act provides:-

Section 4 of the same Act provides:-

Section 17 of the County Government Act is to the effect that the same immunity accorded to Parliament shall be applicable to the County Assemblies. It provides:-

The national law regulating the powers and privileges of Parliament shall, with the necessary modifications, apply to a County Assembly.

From the understanding of the foregoing provisions, the court should not interfere with the legislative authority vested in Parliament by the Constitution which case also applies to the County Assemblies. The Court should be reluctant to question parliamentary procedures, debates, workings as long as they are in accordance with the Constitution. It is trite law that where the constitution is violated, the court is empowered by Article 165 of the Constitution to intervene on application by the aggrieved party.

Article 23(1) of the Constitution confers jurisdiction to the court to hear and determine any violations of individual rights and fundamental freedoms instituted under Article 22 of the Constitution.

The petitioner states that he is aggrieved by the ruling of the Speaker’s in which he purported to interpret the law and proceeded to declare that Standing Orders No. 59 of the Embu County Assembly is null and void. It is alleged that the decision of the first respondent and his directions constituted a breach of the petitioner's constitutional rights. The petitioner seeks to set aside the decision of the Speaker on the ground that it has no basis in law.

The respondents argue that the prayers in the petition are tantamount to an appeal against the decision of the Speaker. It is also contended that should the court not interfere with the proceedings of the County Assembly involving debate, procedure, directions or decisions of the Speaker, it would amount to violation of the doctrine of the separation of powers.

The petitioner relying on Article 159 of the Constitution argues that the court cannot sit aloof and watch while disputes clearly delineated under the Constitution to be within its purview continue to eat into the very fabric of the Republic of Kenya.

The petitioner further argues that so long as the speaker has abrogated his powers and acted ultra vires the court has jurisdiction to question the legality or the validity of his acts. According to the petitioner such an intervention does not amount to sitting on an appeal on the Speaker’s ruling as contended by the respondents.

The powers to interpret standing Orders is vested in the Speaker so long as the interpretation is in compliance with the law. The matter which prompted the Speaker’s ruling arose from a question by a member on the floor one Hon. Joseph Mwaniki on the procedure for removal of the Deputy Speaker. The procedure of removal of Speaker is contained in Standing Order 59 of Embu County Assembly and is a replica of Section 11 of the County Assembly Act.

The Speaker invited the comments of members in the house as to the question whether the provisions of Standing Order No.59 applies to to the Deputy Speaker. The Speaker then set the matter for his ruling. In his ruling the 1st respondent declared the Standing Order null and void on the basis that it contradicts Section 20 of the County Government's Act, 2012.

Section 20 provides for the manner in which members in the County Assembly will vote whereas the simple majority carries the day. The removal of the Speaker requires a threshold of 75 percent of the members of the Assembly.

In my considered view, the 1st respondent in his ruling interpreted Standing Order No. 59 of the Assembly vis a vis the relevant statute which is within his mandate.

The petitioner is a member of the County Assembly who is elected as the Deputy Speaker to preside over the proceedings of the house in the absence of the Speaker. If he was to be removed from the position of the Deputy Speaker, he remains a member of the County Assembly. Such removal can only be challenged once a decision has been reached by the assembly.

Article 178 of the Constitution provides forth election of the County Assembly Speaker from persons who are not members of the assembly. Section 178(2)(b) provides for election of another member of the assembly to preside over a sitting of proceedings in the assembly in the absence of the Speaker. This article gives Parliament power to enact legislation for the election and removal from office of the speaker.

The procedure to be adopted in the removal of the Deputy Speaker is a question for another day since this court is only addressing the issue of jurisdiction.

It is important to further examine the contents of the petition including the prayers sought. The petitioner contends that the provisions of Article 47 have been violated by the actions of the Speaker. Is is further argued that the respondents seek to introduce, move and discuss a motion on removal of the petitioner from the office without following the due process of the law.

It is not in dispute that the petitioner is aggrieved by the action of the 1st respondent who it is argued imposed on himself the duty of interpretation of the law. The petitioner argues that the interpretation of the law is a preserve of the High Court and that any action by the Speaker purporting to carry out the duty would be ultra vires.To this extent, I agree with the petitioner that interpretation of the law is not a function of the Speaker or of any other person or authority save the Court.

However, it is my considered opinion that the gist of the Speaker’s ruling was the nullification of Standing Order No. 59 which is a mandate of the assembly. The Standing Orders are drafted by the assembly and may be amended or nullified by the assembly.

It is also important to consider that the matters complained of arose out of a debate in the County Assembly. The Assembly was in the process of conducting the business of the house which is a function conferred on it by the law.

The petitioner is aggrieved by the intended/proposed removal from his position as the Deputy Speaker of the Assembly. What has been presented before the assembly is a notice of a removal motion. At the time this petition was filed, the motion was yet to be filed.

The prayers in the petition include the following:-

(I) A declaration that the 1st Respondent did not have the jurisdiction to interpret Article 178 Section 20 (1) of the County Government Act vis a vis Standing Order 59 of the County Assembly of Embu Standing Orders and ultimately declaring null and void.

(ii) A declaration that the ruling made by the 1st Respondents on 24th February 2015 was utra vires his powers and the procedure and threshold for the removal of Acting and or Deputy Speaker of the County Assembly of Embu remains as provided for under Standing Order No. 59 of the County Assembly of Embu.

(iii) A permanent injunction be issued to restrain the Respondents and any member thereof from introducing, moving into the Assembly, debating, considering, and discussing any motion for the removal of the petitioner herein contrary to Standing Order No. 59 of the County Assembly of Embu.

The question which arises in this petition is whether the court has jurisdiction to review the ruling of the Speaker and to interfere with the County Assembly debates or to issue an injunction that a certain motion should not be tabled. It is my considered view that this court lacks jurisdiction to stop or interfere in any way with parliamentary/county assembly debates and procedures.

The petitioner urges the court to grant a permanent injunction restraining any member from introducing, moving into the assembly, debating, considering discussing any motion relating to the removal of the petitioner.

For the court to grant such an order, would be an affront of the separation of powers which would paralyze the proceedings of the Assembly. The assembly has power to elect and remove the Deputy Speaker and no court should interfere with the functions. The judiciary and parliament should maintain the respect for each others responsibility. Parliament has the primary responsibility to make law while the judiciary applies and interprets the law.

To grant the orders sought in the petition would lead to violation of the law in so far as the doctrine of separation of powers is concerned. If actions of this nature are encouraged, the courts would be clogged with unnecessary cases which are likely to cause conflicts between the judiciary and the legislature whose functions are clearly spelt out in the Constitution. However, this statement does not oust the jurisdiction of the court in intervening in situations where Parliament and County Assemblies do not follow the due process of the law.

The petitioner's fear is that he may be removed from office without the due process of the law being followed. This is confirmed by the speculative nature of some of the prayers in the petition. It is my considered view that, the petitioner should wait for a decision to be made after the motion is tabled and in the event that he is aggrieved by it, he has a constitutional right to challenge the decision. Such proceedings would also examine the ruling of the Speaker should it have a bearing on the removal of the petitioner. In such a situation, the petitioner must satisfy the court that the actions of the Speaker were actuated by malice and that they were not authorized.

For the court to determine whether any rights of the petitioner were violated as alleged, it would have to be after tabling the intended motion and upon the assembly makes a decision. I rely on the case of PETER NGOGE VS REPUBLIC (supra)where it was held:-

The invitation to the court to intervene in the matter of the election of Speaker which is clearly regulated by the Standing Orders...the doctrine of separation of powers as regards the internal arrangements of Parliament demands that we do not interfere with any such internal arrangements. The internal arrangements re normally regulated by the Standing Orders of the House...

As earlier stated, the court will intervene in case where decisions are made in blatant disregard of the Constitution and the Statutes. I reach the conclusion that this court has no jurisdiction to hear and determine this petition.

The petition is hereby struck out for want of jurisdiction. Considering the facts and the circumstances giving rise to this petition, I direct that each party meets their own costs.

DELIVERED, DATED AND SIGNED AT EMBU THIS 21ST DAY OF OCTOBER, 2015.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Njoroge for Petitioner

Mr. Njenga for Respondents