The commission of inquiry established by President William Ruto to look into the deaths in Shakahola in Kilifi County in May last year was illegal, the High Court has ruled.
In his ruling, High Court judge Lawrence Mugambi said President William Ruto had no authority to confer specific constitutional mandates belonging to independent constitutional commissions and independent offices, to a commission of inquiry.
The judge said it was not constitutionally viable to establish a commission of inquiry with parallel mandate to investigate the deaths, which falls under the mandate of the police.
“The President should respect the specific mandate given to the Independent Offices and Commissions under the Constitution. He cannot create extra constitutional bodies to undertake that specific functions belonging to agencies created by the Constitution. He cannot use general powers to override specific powers,” the judge said.
The judge said the move to ‘pluck various constitutional mandates and unilaterally concentrating’ them on a commission of inquiry was unconstitutional, null and void.
President Ruto appointed the commission on May 4, 2023 and named Justice Jessie Lesiit as the chairperson, to investigate the deaths, torture, inhuman and degrading treatment of victims linked to the Good News International Church in Kilifi linked to pastor Paul Mackenzie.
The judge further declared Section 3 of the Commission of Inquiry Act, which allows the President unrestricted discretion to appoint a judge and assigning the judge tasks in the executive branch, is a relic of the imperial presidency and not aligned with the current constitutional values and principles on separation of powers and independence of the Judiciary.
Pastor Mackenzie, one of the key suspects in ‘Shakahola Massacre’ was arrested on April 15, 2023 following a discovery of bodies on the expansive land in Kilifi County.
In gazette notices, the then Interior Cabinet Secretary Prof Kithure Kindiki declared Chakama Ranch in Kilifi County, a disturbed area.
The areas were also declared a crime scene hence access by the public was restricted unless with the permission of the operations commander.
More security officers were deployed to aid is search and rescue operation which led to the discovery of more bodies.
The Senate then set up an ad-hoc committee on April 27, 2023 to investigate the proliferation of religious organisations and the circumstances that led to the deaths of more than 200 people in Shakahola.
Equally, the Kenya National Commission on Human Rights (KNCHR) also carried out investigations into the matter and the Independent Policing Oversight Authority stated that it was conducting investigations into Shakahola tragedy to determine whether it occurred due to the laxity or dereliction of duty on the part of the police. The court heard that all the probes were being done using public resources.
Azimio la Umoja coalition challenged the gazette notice appointing the commission of inquiry arguing that only the Judicial Service Commission (JSC) is empowered by the constitution to recruit qualified persons to perform the mandate delegated to the Judiciary under the Constitution.
The coalition argued that the appointment of a sitting judge as the chairperson of the commission undermined the authority of the people in the Judiciary and is a usurpation of the JSC’s mandate.
The Attorney General defended the appointment of the commission arguing that the President’s constitutional role was independent of similar roles constitutionally assigned to various persons and institutions including independent constitutional commissions.
“A declaration is issued that the decision of the President of the Republic of Kenya made on the 4th of May, 2023 in the Kenya Gazette No. 5660 establishing the Commission of Inquiry into Shakahola Tragedy and attempting to confer powers of Independent Constitutional Commissions and Offices (the Respondents and the Interested Party herein) to the said Commission of Inquiry is unconstitutional, null and void,” Justice Mugambi said.
