The High Court has issued conservatory orders staying the operations and implementation of President William Ruto's proclamation on the establishment of a multi-agency team on the war against graft.
Judge Bahati Mwamuye issued the orders in a case filed by Nakuru Surgeon Dr Magare Gikenyi and three others.
Gikenyi, Eliud Karanja, Philemon Abuga and Dishon Keroti want the court to stop the team from compiling any report, giving recommendations or pushing for the implementation based on any report they have made.
Further, the four applicants have urged the court to bar the team members from fulfilling any of the duty, pursuant to the Presidential Multi-Agency team.
They want the court to issue strict priority-based timelines for hearing and determination of the application and petition.
According to the four, the presidential executive order establishing the team is illegal, irregular and unconstitutional.
“A look at the functions of the President under Article 132 shows that he has no powers to establish any anti-corruption agency whatsoever,” reads the application.
The four submit that the so-called powers are just ‘imaginary hot air mirage powers’ which do not exist in the progressive constitution.
They add that although the constitution gives the President powers to perform any other executive function, the same limits him to functions designated for other entities.
They note that only the Ethics and Anti-Corruption Commission (EACC) has the mandate to perform the above function, as provided by the law.
“This means the President does not have powers to perform functions of the independent EACC as provided in Article 79 of the Constitution,” they depose.
The four submit that the team may be biased or may shield the executive, considering it will be headed by the executive office of the president.
They note the various reports by the auditor pointing fingers at the executive following corruption in the Sh104 billion Social Health Authority (SHA) system procurement rip-off and the E-citizen convenience fee.
“The President essentially shields himself and his office from public scrutiny of independent offices like EACC,” they complain.
Further, they state that there is a duplication of duties and the team’s functions are as set on its face, with unknown duration and the funding being done by the ex-chequers.
“The improper use of funds for the impugned team is a duplication of duties and an imprudent use of scarce public resources,” they say.
They accuse President Ruto of violating numerous provisions of the Constitution and the law in establishing the impugned task force, making it unconstitutional, null and void.
“EACC has failed to protect itself from its powers being usurped contrary to the constitution,” they submit.
The four inform the court that the level of involvement of the Directorate of Criminal Investigations (DCI) and the National Intelligence Service in anti-corruption work is contrary to the constitution.
They further state that the team has violated the independence of the Central Bank of Kenya (CBK), which shields it from control of any person or authority in the exercise of its powers.
“The team has also interfered with the independence of the office of the Director of Public Prosecution (ODPP), giving it authority to commence criminal proceedings without control from any person,” they aver.
The four say they believe the illegal work of the taskforce may extend to political witch-hunt, considering the country is entering a political season.
“The action will lead to inter alia loss of public confidence, wastage of public resources and outright abuse of political power to the detriment of rule of law and constitutionalism,” they submit.
According to the four, unless the court sits during vacation and stops the alleged unconstitutionality, the supremacy of the constitution would be at stake.
