CIC team calls for withdrawal of President's nominations

By PETER OPIYO

President Kibaki jetted into the country Monday night from the AU summit in Addis Ababa, and walked straight into opposition from two constitutional Commissions over his nominees to key national offices.

The Judicial Service Commission (JSC) was the first to trash the nominations, especially of the Chief Justice, calling for its urgent reversal on the grounds that the Commission was sidestepped, contrary to the provision in the Constitution.

And even before the ink could dry on their protest paper, JSC wrote to the Commission for the Implementation of the Constitution (CIC), a body mandated to oversee the implementation of the new laws, expressing their reservations.

The commission, led by Charles Nyachae, backed their stance, and quoted Articles 166, 156, 157 and 228 of the Constitution as read together with Sections 24 and 29 of the Sixth Schedule of the Constitution, to support its stand that the nominations were unconstitutional.

Appointing authority

"It is the position of the CIC that the letter of the Constitution as provided for in Article 166 read together with Sections 24 and 29 of the Sixth schedule require that the appointment of the Chief Justice by the appointing authorities should be as follows:

"That the process of appointment should commence with recommendations by the Judicial Service Commission to the President who in turn should consult the Prime Minister after which the President forwards the name of the nominee to the National Assembly for approval before final appointment by the President.

"That the role of the Judicial Service Commission in the appointment of the Chief Justice should be respected, and the Commission allowed to undertake the function reserved to it by the Constitution," read the statement sent to newsrooms in the evening. On the nominations of the Attorney General, the Director of Public Prosecutions and the Controller of Budget, CIC said the process of their appointment is set out in Articles 156, 157 and 228 of the Constitution respectively.

Though the stated Articles require that the three office holders be nominated and appointed by the President, subject to approval by the National Assembly, the current situation calls for due recognition of the National Accord and Reconciliation Act, meaning the PM must be fully consulted.

"In the period before the first election, this section must be read together with the provisions of section 29 of the Sixth Schedule of the Constitution, which provides as follows: The process of appointment of persons to fill new offices and vacancies arising in consequence of the coming into force of this Constitution shall begin on the effective date, and be finalised within one year."

Public appointments

The CIC made its stand known as the Chief Mediator of the Kenya post-election upheavals, Kofi Annan, asked the two principals to embrace consultations as required by the Constitution in any public appointments.

Annan said the impasse must be resolved if Kenya is to have a solid foundation.

He said the new Constitution recognises the National Accord and Reconciliation Act, which enshrines the principle of collaboration between the President and the Prime Minister.

Annan, who helped negotiate the power-sharing deal between Kibaki and Raila in 2008, said the people of Kenya have high hopes in the new Constitution, as it outlines democratic principles, transparency and rule of law and called on the principals to ensure effective implementation to put an end to the culture of impunity.

"In line with the spirit of the Constitution, the two Principals should work together through a transparent mechanism of consultations, as required by the Constitution. I therefore urge the Principals to make every effort to solve the current impasse, and give this important beginning of true judicial reform, a solid foundation," the former UN secretary-general said in statement.

Kibaki last Friday nominated Alnashir Visram for the position of Chief Justice, Prof Githu Muigai as Attorney General, Mr Kioko Kilukumi as Director of Public Prosecutions and Mr William Kirwa as Controller of Budget.

Yesterday, Kilikumi withdrew from representing Eldoret North MP William Ruto in a fraud case following his nomination by the President as Director of Public Prosecutions.

He, however, told the court that should his nomination fail to go through for any reason, he would resume his role in defending Ruto.