AG WAKO FORCED KIBAKI TO BACK DOWN

PRESIDENT Kibaki yesterday withdrew his nominations for four constitutional offices because Attorney General Amos Wako flatly refused to defend the list in the constitutional case before the High Court. “He had no option but to withdraw the list. His team of advisers told him chances of winning the case without AG’s defence were very slim,” a source close to the President revealed last evening.
On Monday, Wako told the three-judge bench comprising Justice Kalpana Rawal, George Dulu and Luka Kimaru that the appointments of Chief Justice Alnashir Visram, Attorney General Githu Muigai and Director of Public Prosecutions Kioko Kilukumi were unconstitutional.
The infuriated Kibaki then reportedly asked Wako to let the government appoint another lawyer to defend the nominations but Wako rejected the request. “There was a proposal that a different lawyer take up the matter. In fact the name of lawyer Fred Ngatia was forwarded to him but he did not act on it,” added the source.“A top lawyer told President Kibaki’s advisers to pass the message to him that the AG siding with applicants in the court case could only make matters worse and precipitate a delivery of an embarrassing judgment in the ongoing case,” a PNU minister revealed.
Wako was apparently bothered not just by the unconstitutional selection process but also by the move to replace him well before expiry of his contract in August 2011.
The PNU and ODM rebels are now also withdrawing a proposed motion to overturn Speaker Kenneth Marende’s ruling last Thursday that the nominations were unconstitutional. “We have also decided to withdraw our planned actions against the Speaker,” stated Chepalungu MP Isaac Rutto yesterday.
At midday yesterday Deputy Prime Minister Uhuru Kenyatta and former Higher Education minister William Ruto met President Kibaki at Harambee House where they agreed to soften their stand and have the nominations dropped.
Yesterday afternoon, the President withdrew the nominations of CJ, AG, DPP and the Controller of Budget in a televised address. “Considering the importance of the office of the Chief Justice as the head of the judicial arm of the government, I have considered all the concerns expressed in regard to this nomination and I have concluded that it is beneficial that the nomination to fill this office, during the transition period, is also done through the Judicial Service Commission,” he declared. “In regard to the nomination of the Attorney General, I have invited the Rt Hon Prime Minister for further consultations,” added Kibaki.
The President said the position of the DPP and the Controller of Budget should be advertised through the Public Service Commission. “This will enable us to move forward the implementation process of the Constitution. I appeal to all Kenyans to remain united as we forge ahead with implementation of the Constitution,” said Kibaki outside the Kenyatta International Conference Centre flanked by about 100 MPs from PNU and the Ruto faction in ODM.
Last Friday a defiant Kibaki had dismissed Marende’s ruling that the nominations were unconstitutional and said he would wait for the ruling of the constitutional court.
Before Ruto and Uhuru went to Harambee House yesterday, they met 102 MPs at the PanAfric Hotel to discuss their strategy and agreed to drop their planned motion in Parliament to overturn Marende’s ruling. “It was felt that even if we passed a motion overturning the Speaker’s ruling, we were headed nowhere since we don’t have a proper defence in court,” said an MP who attended the meeting at PanAfric Hotel.
When Kibaki came to make his statement at the KICC VIP lounge, he was received by Uhuru, Ruto, Vice-President Kalonzo Musyoka and the MPs.
After Kibaki’s announcement, Deputy Prime Minister Musalia Mudavadi welcomed the withdrawal of the names. “Though it has opened up the President to an embarrassing situation, it is a good decision because it was degenerating into a situation where he was being seen as someone who does not want to follow the law. For us our position has been consistent,” Mudavadi said.
Justice Minister Mutula Kilonzo praised the move but said it was overdue. “I only wished he listened to me because I said this long time ago. I am happy he finally came back to us,” Mutula said.
Assistant Minister Kareke Mbiuki said that the President changed his mind after reading the two parliamentary committees’ reports in detail.
“The two reports were clear that the jobs should be advertised. I think this is exactly what the President has resorted to,” he said.
Earlier yesterday, the Commission for Implementation of the Constitution had announced it was going to the Court of Appeal to seek an interpretation of the new constitution concerning nominations of constitutional office holders.
Chairman Charles Nyachae announced the CIC will seek an advisory opinion on nine articles and two sections of the transitional clauses mentioned in the tussle.
Nyachae said ideally such an application should be lodged with the yet-to-be-created Supreme Court. “This in our view will settle once and for all the constitutional issues that are subject of discussion in the nominations. The authoritative pronouncement will also be the basis on which similar constitutional offices will be filled in the future,” Nyachae said.
The ODM also met yesterday morning to discuss the PNU plan to bring a censure motion against Marende. The MPs agreed it was unconstitutional and vowed to block it on the floor of the House.
Earlier, protesters supporting President Kibaki’s position on the nominations held a demonstration outside Parliament Buildings. Police guarding Parliament just watched as about 200 women stood at the entrance of Parliament chanting slogans critical of Speaker Marende.
MPs entering Parliament were blocked by the demonstrators who hurled abuse at the lawmakers as they drove past.