Kibaki nominations: Parliament to decide

By Martin Mutua
The fate of the four nominees to key constitutional offices made by President Kibaki and disowned by Prime Minister Raila Odinga is now in the hands of Parliament.
The two principals met at Harambee House, and because neither could budge, settled on the less embarrassing option of letting Parliament resolve the standoff. They, however, still posed for their respective press crews, smiling broadly in a reassuring posture to Kenyans.
Thereafter the picture that appeared out of tune with the outcome of the meeting was circulated to the newsrooms in keeping with the tradition of Kenya’s Presidency and Premiership.
The President’s position is believed to have been hardened or reinforced following a meeting with Vice-President Kalonzo Musyoka, Deputy Prime Minister Uhuru Kenyatta, Energy Minister Kiraitu Murungi and Environment Minister John Michuki before he met Raila.

President Kibaki and Prime Minister Raila Odinga may not have agreed on the main agenda of the day at Harambee House on Monday, but when the camera crews were ushered in, they radiated a different picture camouflaging what actually took place. [PHOTO: PPS]

Michuki on Sunday assured the President he had the numbers to push through his nominees in Parliament if the matter is to be voted for, and sources revealed this was the backbone of the meeting with the President before it was concluded to pave way for the one with the PM.
But before the President met Raila he also hosted another team from Rift Valley led by suspended Cabinet minister William Ruto, whose objective was to persuade him to recall the name of Controller of Budget nominee, William Kirwa, who they claim is unsuitable for the job.
Mr Kirwa has a record of political differences with Ruto and tried to unseat him in Eldoret North in the 2007 elections.
It is believed the President, who kept quiet as the PM decried his nominations, choosing instead to communicate his conviction he had ‘adequate consultations’ with Raila, and that he acted constitutionally. The PM, who last Thursday declared he would push for advertisement of the four Justice and Budget jobs, stuck to his guns, telling the President he violated the Constitution and undermined a key pillar of the power-sharing deal they signed in 2008.
"In that regard, the two principals agreed to wait for the National Assembly to deal with the list (sent to the Speaker by Kibaki’s office) as well as the (attendant) procedural and constitutional issues,’’ a source who is not authorised to speak on the discussions between the two offices told The Standard in confidence.
The burden is now on the two parliamentary Committees — Justice and Finance — that House Speaker Kenneth Marende House on Thursday gave the task of probing if the meetings held by the two leaders met the threshold of ‘consultations’ envisaged in the National Accord and Reconciliation Act. Kibaki’s side argues that they do, and that ‘consultations’ do not necessarily mean there must be consensus.
The PM’s input
But Raila’s group accuses the President of ignoring the PM’s input and taking him for granted.
Before they met, the two principals had three options to disentangle their stalemate. First was to amend the list by recalling the name of the Chief Justice, which was bitterly criticised by Raila. Second was withdrawal of the whole list to pave way for further ‘consultations’ and involvement of other bodies left out such as Judicial Service Commission.
Finally, there was still a chance Kibaki would convince Raila to accept the list as it is. But they came up with a fourth option, which was to do nothing about their disagreement, and wait for Parliament to complete its scrutiny of the way the nominations were made.
This, however, flies in the face of advice given the President last week by professional lawyers, human rights lobbies and other neutral groups to withdraw the list, and refer the Chief Justice’s nomination to Judicial Service Commission (JSC) to protect the integrity of the office.
"On the Issue of the nominations to fill State offices currently under consideration by Parliament, the two Principals agreed to respect the ongoing parliamentary process and its outcome,’’ reported a dispatch circulated by the Presidential Press Service late afternoon. Sources said the meeting was called at Raila’s request.
Now, in the absence of an out-of-Parliament settlement, which Marende still hoped could be reached by Kibaki and Raila, even as he referred their dispute to the two committees, the ground is set for a protracted battle over the appointment of Attorney General, Director of Public Prosecutions, CJ and Director of Budget.
One method of forestalling the test of might in Parliament was for the two committees to create barriers to stop Kibaki’s nominee list from reaching the floor. But Marende, who on Thursday ruled the committees couldn’t decide for MPs, crashed any hope they had to block the debate.
"A committee does not of itself finally determine a matter for the House. Additionally, it must be noted that questions of constitutionality and observance of the law are not matters to be determined only by the vote of either the committee or indeed of the House," he added.
This means that the committees’ findings would be tabled, and normal Parliamentary procedure would be followed. This could entail voting, and this is the stage that would test Kibaki’s and Raila’s standing in the House. Budalang’i MP Ababu Namwamba chairs the Justice and Legal Affairs team, while Nambale MP Chris Okemo leads that of Finance. Both are from ODM.
Given the rift
There is a feeling within PNU MPs they will easily have their way in Parliament, given the rift in Orange Democratic Movement (ODM) party between Raila and Ruto’s group.
But as PNU dug in its heels, the PM’s side still showed signs it had not lost hope Parliament would reject the names before debate. The PM’s advisor on media issues, Mr Salim Lone, told The Standard Raila was confident Kibaki’s list would be rejected and referred back to the two principals.
"The PM is confident that the matter will be referred back to the two principals and they will ensure the constitutional requirement in the submission of the nomination is adhered to," added Lone. He insisted nothing was agreed upon.
Reliable sources told The Standard the PNU ministers who met Kibaki, led by Kalonzo, insisted the President should not cede an inch, and claimed Raila wanted an easy way out by avoiding Parliament. They met the president alongside Head of the Civil Service and Secretary to the Cabinet, Mr Francis Muthaura, a source revealed.
Ruto met Kibaki with Agriculture minister Dr Sally Kosgei, Tinderet MP Henry Kosgey and Belgut MP Charles Keter. Sources revealed Kalenjin MPs also expressed their displeasure with Kirwa’s nomination, and asked the President to reconsider his decision.
"Except for Kirwa, the Kalenjin MPs are going to support the other nominations and that is assurance they gave the president," said another source privy to the meeting.
The nominations dispute erupted when President Kibaki nominated High Court Judge Alnashir Visram as CJ, Prof Githu Muigai as AG, Mr Kioko Kilukumi as DPP and Kirwa as Controller of Budget.
Other issues deliberated by the President and the PM included the International Criminal Court process, support for local tribunal to try post-election violence suspects and appointment of two acting ministers.