Expert warns of constitutional crisis if row is not resolved

By Lillian Aluanga

Kenya risks sliding into a constitutional crisis if the row over nominations to four key State jobs is not resolved soon.

A member of the now defunct Committee of Experts who did not wish to be named said the current crisis created by disagreements between the various arms of government was unnecessary in light of the time left before the country goes into an election.

"We have about 18 months to the next election. There are several other offices that were supposed to have been filled within a year. There are new constituencies and wards that were to be created and we need a new electoral body. Time is of the essence here but I am afraid we are losing sight of this," he says.

Good practice

"There is a clear way out of this crisis but those concerned must see the urgency in doing so and act fast," he adds.

The former COE member says it is not true that it was mandatory for JSC to identify a new CJ adding that the two Principals should agree upon this appointment.

"The input of the JSC would be important as a matter of good practice even if it is not strictly required in this instance. But it is true that in future, after the appointment of this CJ that the JSC must recommend the potential nominees to the president," he says.

Some law experts have argued that this should have clearly been stipulated in law to avoid the kind of pitfalls currently being witnessed.

Imminent depature

JSC member Ahmednassir Abdullahi has allayed fears of a constitutional crisis with the imminent departure of CJ Evan Gicheru next week, arguing it was possible for a senior judge to act in the same capacity.

Differing opinions between the various arms of government have fanned the current row, with President Mwai Kibaki saying he will await the verdict of the Constitutional court on the matter.

This follows House Speaker Kenneth Marende’s ruling on the unconstitutionality of the nominations. Already a section of MPs allied to Kibaki, led by VP Kalonzo Musyoka, are mulling over the possibility of censuring the Speaker if they fail to overturn the Thursday ruling.

While condemning MPs who have taken hardline positions over the issue, Fida chairperson Naomi Wagereke says it is important for the three arms of government to uphold the constitution to set the right tone for implementation and move the country out of the current crisis.

"Interpretation of the constitution is not about numbers or party strength. Kibaki must lead Kenya by respecting the supremacy of the constitution," she says.

Wagereke lauded the Speaker’s ruling saying it was the only way forward for a country that recently rose out of turmoil. She said it was ironical for Parliament to fight its own Speaker for upholding the supremacy of a document which vests a lot of power on the legislature.

"It would be a mockery of the powers vested on it by the new constitution should Parliament decide to jump into bed with the Executive," she says.

Wagereke says even if the Constitutional court were to rule in favour of the Executive, questions on the legitimacy of the office holders would still arise in future.

The former COE member is categorical on the origins of the current row, which he says stems from the mixing up of nominations to three key offices.

"Strictly speaking, nobody can take up the AG’s position now unless Amos Wako has indicated his preparedness to resign before August. The best the two principals can do is to convince him to step down earlier, otherwise the person picked to succeed him will remain a nominee for as long as the AG is in office," he says.

Competitive process

He says while the nomination of the CJ and AG requires consensus between the two principals, those of the Director of Public Prosecutions and Controller of Budget must be handled differently.

"These two (DPP and Controller of Budget) must be advertised. Those who qualify will then be selected through a competitive process and shortlisted. There really is no provision for either of the principals to generate names of the nominees even though their participation is welcome," he says.

He says currently there is no clear delineation of the organs for advertising, shortlisting and presentation of names to Parliament.

"The Public Service Commission as currently constituted is ill equipped to do all this. There must be a joint process between the Justice ministry, AGs office, Parliament and PSC to come up with a lean and credible body for this purpose," he says.