The High Court has nullified a gazette notice issued by President William Ruto on May 4, 2023, which established a commission of inquiry into the Shakahola Tragedy.
Justice Lawrence Mugambi declared that the President’s action in creating the commission undermined the authority vested in other constitutional institutions and state organs.
“The President can only exercise the powers and responsibilities bestowed upon him and cannot arrogate to himself any powers assigned to other arms or independent offices or commissions,” emphasized the judge.
President Ruto had appointed Justice Jessie Lessit and others to lead the commission. The gazette notice issued on May 4, 2023, authorized the establishment of a Commission of Inquiry into the Shakahola Tragedy.
“The team will investigate the circumstances surrounding the deaths and instances of inhumane torture,” stated the gazette notice.
The commission was tasked with probing the deaths, torture, and inhumane treatment inflicted upon members of the Good News International Church.
Additionally, it was mandated to investigate the factors contributing to the emergence of this particular religious extremist group and other entities fostering negative religion-based activities.
Following the establishment of the commission, Azimio filed a petition challenging its formation in court.
The Opposition named the President, the National Intelligence Service, the Director of Public Prosecutions, and the Speaker of the National Assembly among others as respondents.
They argued that forming the inquiry encroached upon and weakened the authority of the National Intelligence Service, which is mandated to investigate intelligence failures related to the incident.
Azimio insisted that security intelligence falls solely under the jurisdiction of the NIS and asserted that only Parliament, through an Act of Parliament, has the authority to establish subordinate courts or independent tribunals.
Justice Mugambi concurred with Azimio’s contention, and criticized Section 3 of the Commission of Inquiry Act, which grants the President unrestricted discretion to appoint judges, as contradictory to the constitutional principle of separation of powers.
“To that extent, Section 3 of the Commission of Inquiry Act is unconstitutional. It does not align with current constitutional principles on separation of powers and judicial independence,” stated Mugambi.
