House team says Kirwa's nomination is 'unconstitutional'

By Alex Ndegwa and Martin Mutua
One of the House committees interrogating nominations to crucial constitutional offices has ruled the nominee for Controller of Budget is sent back to the two principals to 'consult' afresh.
The President’s letter to the Speaker communicating the list disowned by his main coalition partner appeared to be literally resealed and marked ‘return to sender’, even as Kenyans awaited resolution to the impasse threatening to erode, further, the credibility of the four constitutional offices.
The ruling set the stage for a return to the negotiating table by President Kibaki
who announced the nominations and Prime Minister Raila Odinga who disowned them, saying he was not consulted.
The standoff came out when Raila disputed the list, called for a transparent and competitive process, and wrote to the Speaker accusing the President of acting unilaterally, and against the Constitution and National Accord. The Accord is the pillar of his 2008 power-sharing deal with Kibaki.
The Finance Committee led by Nambale MP, Chris Okemo, also tactfully left a window for Parliament to approve the nomination of William Kirwa, if it so wishes.
The development came, as it also emerged Raila met Kibaki at his Harambee House offices. Even though the official position was that they spoke about drought ravaging the country, the possibility the nominations came up could not be ruled out. This was so because, it was expected that Marende would give a ruling in yesterday afternoon. Their parties also held separate meetings either to defend or reject the outcome depending on their interests.
The committee, whose decision is widely expected to be replicated by Justice Committee, which is examining nominations to three top judicial offices and whose report is awaited today, took the decision on the basis of the Constitution.
Today Parliament is expected to debate the Finance Committee report tabled yesterday, and the Justice teams, which Speaker Kenneth Marende ordered, must be presented to the House at 12:30pm today. Both committees, whose proceedings have been rocked by spillover of rivalries between the two principals, were to present their reports yesterday after an extension sanctioned by the Speaker. But the Justice team was yet to reach consensus on the nominees.
"The committee recommends that pursuant to Article 228(1) of the Constitution of Kenya the nomination of Mr. William Kipkemboi Kirwa for the position of Controller of Budget be returned to the two principals for nomination in a manner that meets the stringent legal requirements,’’ ruled the committee.
bid rejected
It added the new Constitution, "set a higher threshold than the actions of the two principals", a statement that seemingly placed the blame for the debacle squarely and proportionately on the shoulders of Kibaki and Raila.
Yesterday, Marende who referred the Kibaki-Raila disagreement to the two committees, and who expected to give his own ruling tomorrow, rejected a bid by Justice team headed by Budalang’i MP Ababu Namwamba to be allowed a longer extension.
Marende said his refusal was informed by the fact that controversy over the nominations was causing national anxiety. He could also have been referring to the credibility crisis the standoff is posing for the four offices, which are supposed to be free from political control. They are the Chief Justice, Attorney General, Director of Public Prosecutions, and Controller of Budget.
The Speaker appeared to have his finger on the pulse of the nation when he said the row was causing anxiety, and it was evident a storm was building up over the dispute around the nominations of Justice Alnashir Visram for CJ, Githu Muigai (AG), Kioko Kilukumi (DPP) and Kirwa.
The committee engaged the reverse gear on the President’s nomination, Raila’s party, Orange Democratic Movement, held a held a parliamentary group meeting. Its MPs vowed not to relent in their opposition to the nominations.
The party argued the nominations were part of efforts by Kibaki and his group to ease the road for the deferment of the ICC trials facing six personalities. Incidentally, the meeting took place in Orange House as Kibaki met Kenya’s envoys recalled for briefing on how to lobby the members of the United Nations Security Council to support his bid for deferral of the cases.
Immigration Minister Otieno Kajwang’, who was in the ODM PG, argued the nominations should not be debated as they were unconstitutional. This was the view taken by the Okemo committee when it ruled: "The committee did not address itself to the question of Kirwa’s suitability as it found that the stringent legal requirements for his nomination were not met.
"We expect no debate on the reports because the House cannot debate reports that are unconstitutional," said Kajwang’, at Orange House.
But in another end of town, Kibaki’s Party of National Unity, which like ODM appeared to have been preparing for a showdown later in the day in Parliament, met and were joined by select Rift MPs allied to Eldoret North MP William Ruto. The Rift MPs led by the suspended minister protested to Kibaki the nomination of Kirwa two weeks ago. The two groups demanded the Speaker should not be dictated to by Raila’s group and appeared to set the ground for a contest in the House.
"The Speaker said he would make his ruling. No one can dictate to him," said Belgut MP Charles Keter (ODM) Keter and Chepalungu MP Isaac Rutto joined the 30 PNU MPs to plan how to counter ODM on the controversial nominations.
Values betrayed
Okemo team trashed Kirwa’s nomination arguing it lacked competitive process and betrayed the national values and principles enshrined in the Constitution, including public participation." It added, "must be reflected in the nomination process".
Sources told The Standard Namwamba’s team disagreed on whether the principals consulted in accordance with the Constitution and if the consultations must end in agreement. However the majority were said to be of the opinion they did not consult adequately.
The committee, according to our sources, would recommend that future consultations by the two on similar appointments be structured.
On Monday the committee members agreed to reject the nomination for CJ and forward the names of nominees for the other two offices. But the members disagreed after one side pushed to have all the nominees appear before them for vetting first.
Okemo’s team ruled Kirwa’s position should have been advertised and pointed out Kibaki-Raila consultations were inconclusive.
They added: "The threshold for consultation is high. The two principals must commit themselves to work together in good faith as true partners, through constant consultation and willingness to compromise."
The committee ruled that although Kirwa’s name was selected from persons who had applied to head Commission on Revenue Allocation, the nomination procedure was not fair because it could lock out other interested and qualified persons who had not applied.