Court rejects case against Gichangi appointment

Thursday, 24 February 2011 00:01 BY MAUREEN MUDI

LOST: Lawyer Ndubi with Khalid yesterday.

The High Court in Mombasa yesterday dismissed an application to revoke the reappointment of Maj-Gen Michael Gichangi as Director General of the National Security Intelligence Service.
Justice Mohammed Ibrahim however granted the Muslims for Human Rights (Muhuri) an order barring the Attorney General from publishing the name of Justice Alnashir Visram as a nominee for the post of Chief Justice.
Justice Ibrahim directed the Judicial Service Commission and the AG not to enforce any judicial appointments by President Kibaki pending the settlement of the suit.
He dismissed an application to have the JSC establish a mechanism of transparency and accountability sourcing for suitable candidates for appointments as CJ and his deputy.
Ibrahim barred the AG from presenting Kioko Kilukumi (for Director of Public Prosecutions) and Githu Muigai (for Attorney General) as having been nominated to fill those judicial positions.
In the petition certified as urgent, the judge ruled that President Kibaki in exercise of his powers had already appointed Gichangi for a five-year period from January 15. “I am of the view that the applicants have a right to pursue and prosecute the petition against the DG. I am doubtful whether on this basis they would be entitled to the conservatory orders,” he said.
The judge said Gichangi was in office in the same capacity for the last five years, and his re-appointment was statutory. “The office of the DG is still there, and it has been filled. But it does not place the claim beyond retrievability. If the petitioners succeed in their claim, then this court has the power, authority and jurisdiction to nullify and revoke the appointment,” said Ibrahim in his 75-page ruling which took him two hours to read.
The judge said the DG’s issue was different from that of the CJ, AG and DPP, which had not taken effect.
If granted, the prayers sought by Muhuri against the DG would destabilise the leadership of NSIS and threaten national security, peace and stability, the judge said. “The orders sought ought not be granted by the court as the DG has been appointed and is already in office and should only be removed if at all after the full hearing of the petition. The material presented falls far below the threshold required to grant a mandatory injunction at the interlocutory stage,” he said.
In the suit, Wako and the JSC were represented by principal state counsel Mwangi Njoroge while Waweru Gatonye represented Gichangi and Muhuri was represented by Harun Ndubi.
Muhuri’s executive director Khalid Hussein, activists Khelef Abdulrahman Khalifa and Ndung’u Wainaina had filed for an order against the publication of Visram as nominated for Chief Justice until he is vetted.
They also wanted the AG restrained from presenting or publishing the names of Muigai and Kilukumi as validly nominated to fill the positions of AG and DPP respectively. The human rights activists argued that Gichangi was appointed outside of the constitutional framework.
The court was filled to capacity by activists, lawyers and litigants who listened attentively as the ruling was delivered.
Gichangi’s appointment was gazetted last week. He is the principal adviser to the President and Government on matters of national security and intelligence.