Tuesday, February 22, 2011

Face-off: PNU, ODM take fight to Parliament




Updated 4 hr(s) 35 min(s) ago
By Standard Team
Tables may turn and roles be reversed in Parliament today, with members unhappy with Speaker over the recent nominations to key constitutional officers, and who claim he acted unilaterally and unconstitutionally seeking to declare him out of order. President Kibaki was last evening holed up in a meeting with PNU bigwigs, three days after he stood by his nominations and accused Speaker Kenneth Marende of overstepping his mandate, but said he would await the court’s ruling.
They included Vice President Kalonzo Musyoka who ran his errands to deliver anti-ICC messages across African capitals, which also form part of the fallout in the Grand Coalition.
Over the weekend, PNU leaders warned they would teach Marende a lesson, which was translated to mean they would move a censure motion against him. But by yesterday, Parliament had not received any notice of such a motion from Kibaki allies to censure the Speaker, with House Clerk Patrick Gichohi saying such a move requires a three-day notice.
"I have not seen any here," he said. To censure the Speaker, an MP is required to bring a substantive motion preceded by a three days’ notice under Standing Order 79(4), which would imply that if PNU hardliners press ahead with their plot, it would not be today but next week.
With the censure motion almost out of the question for today, Kibaki allies may put their efforts into challenging the speaker’s decision, and trying to overturn it.
It was a picture of a nation whose two top leaders were silently, but defiantly, marshalling their troops for the anticipated showdown in Parliament today, even as it appeared compromise between them was now out of question.
Beginning last Thursday and through to the weekend, the two sides dug in for bruising battle and when President Kibaki and Prime Minister Raila Odinga met yesterday, it was not about their standoff but other administrative and regional concerns in the country and the region.
Banking on his party and a detachment of ODM rebel legislators led by Eldoret North MP William Ruto who are opposed to their party leader, Kibaki expects that either through Parliament or the court, his argument will be vindicated: "None of these two parliamentary committees returned a verdict that myself and the Prime Minister had acted unconstitutionally in relation to the nominations. Yesterday (Thursday), the Speaker of the National Assembly arrived at a different position regarding the constitutional status of the nominations," Kibaki said last week.
A BIGGER WAR
Raila on the other hand has stood by Marende, arguing the President erred, but claiming it was because he was misled. He added the rider that the contest is between reformers and anti-reformers, in effect are between Kibaki and Raila. Marende appears to be the pawn in the bigger war, drawn into it by his ruling, which pro-Kibaki ministers, Mr Uhuru Kenyatta, Mr Kiraitu Murungi, Prof Sam Ongeri and Kalonzo linked, to Raila.
In court, Attorney General Amos Wako maintained his position that the CJ’s nomination was unconstitutional because the Judicial Service Commission was not consulted.
He said the others also failed the gender parity test and were thus unlawful. State counsel, Ms Wanjiku Mbiyu told Justices Kalpana Rawal, George Dulu and Luka Kimaru that the position of the Government’s legal advisor on the appointments was clear, and that they had already made some concessions regarding the same on February 3.
"Our position is very clear. We made some concessions and that position is very clear. We will be asking the court to interpret some sections of the new and old Constitution," she said.
It is expected Marende, who may have to defend his decision to exercise his discretion and give a ruling before the reports of the House Committees were tabled, will come under fire as Kibaki’s allies try to overturn his ruling.
But as PNU prepared to take the battle to Marende’s doorstep, the court case which was expected to guide the country on the standoff postponed its hearing to March 2 — three days after the term of current CJ lapses.
It looked like the country would have to make do with acting CJ as Justice Minister Mutula Kilonzo advised this was the only way to avoid a constitutional crisis.
Informal sources revealed Justice R.C.S Omolo, whom Raila preferred to be nominated CJ because of his seniority in the Court of Appeal, may be sidestepped because he is subject of the row between the principals.
In his place, Justice Phillip Tunoi, who was ranked second to Omolo by the Judiciary in the list given to Raila and Kibaki during the botched negotiations, may hold the office on a transitory arrangement.
Since Thursday, when Marende ruled the nomination of Justice Alnashir Visram for Chief Justice, Prof Githu Muigai (Attorney Genera) Mr Kioko Kilukumi (Director of Public Prosecutions) and Mr William Kirwa (Controller of Budget) were done irregularly, he has been on the chopping board of Kibaki’s allies. It is believed yesterday’s meeting at the President’s office was an anti-Marende strategy.
PNU had initially slated him for a no-confidence motion, but this plot was reportedly shelved because of the high constitutional threshold of 148 MPs to push it through.
ROUTINE MEETING
Though the PNU MPs were secretive on what transpired at the meeting, by 7pm they were still locked in discussions. Kibaki later met Raila, Kalonzo and a Cabinet sub-committee on security.
An official from PM’s office told The Standard, "it was a routine meeting by the security and foreign relations committee and had nothing to do with nominations".
The postponement of the court hearing on the constitutional case challenging the nominations made it obvious the Sunday deadline to have a new CJ appointed would not be met, setting off proposals for an acting CJ.
The President could do this by applying Article 259 (3) (b), which allows making appointments in acting capacity.
"Justice Philip Tunoi could be appointed to act because Justice Riaga Omollo is a member of the Judicial Service Commission, and his name also featured in the current saga," revealed an ODM MP.
He explained Tunoi could fit the bill because he is also Vice President of the East African Court of Justice, and is therefore not only senior locally but regionally. This development came as warnings were sounded that the country could be descending into a constitutional crisis. Justice and Legal Affairs committee Chairman Ababu Namwamba warned of the same.
To impeach the Speaker through a censure or confidence motion, aggrieved MPs are required to raise a two-thirds majority vote or 148 MPs in support, according to the new constitution. PNU claims to have this number of MPs.
To impeach the PM on the other hand, which PNU has not ruled out, requires at least support of 112 legislators.
— Reporting by David Ochami, Judy Ogutu, Peter Opiyo and Beauttah Omanga
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