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Petition by Azimio la Umoja leader Raila Odinga challenging the decision of President William Ruto to appoint a commission of inquiry to probe the Shakahola massacre has been certified urgent by the High Court.

Justice Hedwig Ong’udi of the High Court in Milimani made the certification saying that the petition needs to be disposed of expeditiously and ordered the case be heard on May 22.

“Having read the petition, notice of motion and certificate of urgency dated May 9, 2023 I find the matter to be urgent and I certify it as so,” the judge stated.

She further directed Azimio Coalition to serve President Ruto, AG Justin Muturi, the Speaker of National Assembly, the Director of Public Prosecutions, Inspector General of Police, the National Intelligence Service, Kenya National Commission on Human Rights, Public Service Commission, the Commission for Administrative Justice and Independent Police Oversight Authority with the law suit papers by May 18.

Without power

The directions were given a hours after the Justice Jessie Lessit led Commission on the Shakahola massacre was sworn in by the High Court Principal Judge Eric Ogola on Tuesday afternoon.

In the petition, Raila says it is unconstitutional for Ruto to appoint a judicial commission of inquiry to look into the matter.

The Azimio la Umoja One Kenya coalition party claims that Ruto usurped the powers of among others the Director of Public Prosecutions, the Judiciary and Parliament. Through lawyer Paul Mwangi, the coalition states the decision to form the commission of the inquiry into the Shakahola tragedy is therefore a contravention of the constitution.

Mwangi argues that Ruto hijacked the criminal justice system without powers to do so.

“The formation of the commission of inquiry into the Shakahola tragedy is a usurpation of power by the President of Kenya from the people by attempting to donate powers, duly donated by the constitution of Kenya to constitutional institutions, State organs and state officers, to his own personal nominees identified, nominated empowered and mandated at his absolute whim and discretion and consequently, it is an imitative by the president to undermine the constitutional mandate and authority of those constitutional institutions, “ Mwangi says.

Judicial authority

According to Azimio, it is illegal for the president to appoint judges without reference to Chief Justice Martha Koome.

Raila argues that the judicial inquiry is conducting a similar role as court as the same could be done in an inquest.  “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,” argues Mwangi.