Kibaki nominates CJ, AG amid spat

By STANDARD TEAM

President Kibaki has nominated Justice Alnashir Visram for the Chief Justice position amid a standoff with Prime Minister Raila Odinga.

In a move that caught the Prime Minister's party off-guard for the second time in as many weeks, President Kibaki also nominated Prof Githu Muigai as Attorney General and Mr Kioko Kilukumi Director of Public Prosecutions.

A dispatch from PPS said the President "after consultation with the Prime Minister of the Republic of Kenya Raila Odinga" also appointed Mr William Kirwa as Controller of Budget.

Justice Alnashir Visram

Prof Githu Muigai

Mr Kioko Kilukumi

Mr William Kirwa

But Lands Minister James Orengo, an ally of the PM, addressed a press conference shortly before the dispatch from the PPS, saying Raila had not been consulted. President Kibaki made the key appointments in the Judiciary, barely an hour after Kenya set in motion the process of deferral of cases filed against six of its citizens at the International Criminal Court (ICC).

The timing of the appointment of the new Chief Justice (CJ), the Attorney General (AG) and Director of Public Prosecutions (DPP) is calculated to convince the international community on Kenya’s commitment to judicial reforms.

It has been argued the ICC should handle the cases because the country lacks a credible Judiciary to dispense justice to victims of the 2007/2008 post-election violence.

The Government is in a rush to reform the criminal justice system as proof it was now capable of trying those who bear the greatest responsibility for the skirmishes in which more than 1,133 people were killed and over 650,000 displaced from their homes.

Fresh row

At his press conference last night, Mr Orengo urged the President to embrace consultations and claimed the Head of Civil Service Francis Muthaura had confirmed the nomination of Justice Visram as the Chief Justice, with Muigai as the Attorney General and Kilukumi as the Director of Public Prosecution.

The fresh row rekindles memories of strained relationships between coalition partners PNU and ODM that squabbled over positions soon after the signing of the National Accord that ended the 2008 political crisis.

"I have been forced to call this press conference at this hour in regard to the impending appointments to various institutions of the government," said Orengo at 8.30 pm last night.

He said the ODM side of Government was also taken by surprise with the appointment of Major General Michael Gichangi as the Director General of the National Security Intelligence Service, last week.

He said: "The Head of Public Service Francis Muthaura called PM’s Permanent Secretary Mohammed Isahakia this afternoon to tell him about the appointments and they were supposed to be announced anytime, but we are not going to accept them because there was no consultations and the Prime Minister who is in Ethiopia attending an AU Summit meeting is not aware."

On Wednesday, the two principals disagreed on who should be the next CJ after Kibaki insisted on High Court Judge Paul Kihara while Raila rooted for court of Appeal Judge Riaga Omollo.

Accountable process

It emerged the two had been meeting over the appointment of the CJ, Deputy CJ, Attorney General and the Director of Public Prosecutions all positions to be filled this year.

"They disagreed after Kibaki insisted on picking Kihara while Raila insisted on Justice Riaga Omollo," said a source close to the PM.

The two principals appear to have ignored appeals by the Judicial Service Commission (JSC) to allow it conduct the vetting before forwarding three names to Parliament for approval.

Some JSC members had suggested the appointment of the new Chief Justice be done through a transparent and accountable process.

Under the Sixth Schedule, the President is expected to consult the Prime Minister as provided for under the National Accord to nominate Chief Justice Evan Gicheru’s successor.

The Standard on Saturday has learnt Kibaki and Raila could not agree on the list of new appointees stipulated under the Constitution during the meeting that lasted between 12.30 to 1.30pm at the President’s office in Harambee House.

President Kibaki proposed Kihara to be the next Chief Justice, replacing Justice Gicheru, and Lady Justice Hannah Okwengu the deputy Chief Justice.

Justice Omollo is a member of the Judicial Service Commission.

The meeting was postponed after Raila said he would like to consult more on the proposed appointments. The naming of the new CJ, AG and DPP is central to reforming the Judiciary. These reforms, coupled with reforms in the police service, could bolster Kenya’s case to have the ICC cede jurisdiction of the Kenyan cases. The Kenya National Commission on Human Rights (KNCHR) and civil society organisations had expressed concerns about horse-trading on the appointment of the Chief Justice.

Political affiliation

They said appointments made through a deal between the President and Prime Minister "loses sight of the history of the sweeping reforms articulated in the Constitution" and demanded "an open and credible process that gives all interested parties an equal chance of becoming Chief Justice."

The Kenya Episcopal Conference has also raised the red flag on unmerited public appointments based on tribalism, nepotism and political affiliation.

"The posts of CJ, AG and DPP are critical and need to be handled carefully. Horse-trading for such positions can be the highest culture of impunity, which the Grand Coalition cannot afford under the new Constitution," Orengo said.

But appointments to key positions arising from the new Constitution have been a cause of friction between ODM and PNU.

The coalition partners have also jointly come under fire from the public due to horse trading and apportioning of posts between themselves with scant regard to competitiveness.

Last week, the President reappointed National Security Intelligence Services (NSIS) Director General Maj-Gen Michael Gichangi for another five-year term.

ODM cried foul saying the President had unilaterally renewed the term of the spy chief, reviving the discontent between the partners in the shaky coalition, whose biggest strain has remained sharing of public appointments.

Orengo claimed the reappointment "set a bad precedent" and was "mischievous" citing the timing while the PM was in Ivory Coast.

Justice Gicheru is expected to leave office by February 27, six months after the enactment of the new Constitution. The offices of AG and DPP must have new appointees by August 27 as the Constitution says they should be replaced within one year.

Reports by Biketi Kikechi, Ben Agina and Alex Ndegwa