By OLIVER MATHENGE omathenge@ke.nationmedia.com
Posted Saturday, February 12 2011 at 21:00
In Summary
- Lobbying intense on both sides, with intra-party and inter-party divisions apparent over choices of nominees for constitutional jobs
Several appointments to constitutional offices lined up in the next few months will put to the test the fragile relationship between coalition partners PNU and ODM.
The Constitution stipulates that all new appointments have to be made by August 27 this year. It also says that the President has to consult the Prime Minister as provided for under the National Accord.
One of the key appointments is that of the Central Bank governor as the current holder’s term ends on March 4. It remains to be seen if Njuguna Ndung’u’s term will be renewed.
Sources say lobbying for the job has intensified with President Kibaki’s side divided over the matter. Though the position is not in the Constitution, CBK is entrenched in the new law. The appointment of Prof Ndung’u’s replacement is likely to follow the current CBK law.
Constitutional Implementation Oversight Committee chairman Mohamed Abdikadir said Parliament would seek to safeguard the integrity of the hiring process.
“There is a need to rush through some of the pieces of legislation that will help set the criteria for these appointments. This will safeguard the integrity of the recruitment process and ensure that it is proper and transparent.”
Mr Abdikadir said competitive recruitment was not suitable for all the jobs but said inclusion of the youth and women was an indispensable requirement.
Justice and Legal Affairs committee chairman Ababu Namwamba took a similar line: “The President and Prime Minister have the rare opportunity of claiming the honour of being fathers of the Second Republic. All they need to do is to sustain unflinching fidelity to the new constitutional order, whose dawn they oversaw.
“Their task will be made easier by honest, direct engagement instead of giving space to proxy duels between their respective aides most of whom are more interested in succession politics.”
Authority of Parliament
Several appointments that are to be made in line with the Constitution are pending. A number of commissions have to be put in place and most require that the President, with the authority of Parliament, appoints their chairpersons.
These include the chairpersons to the National Land Commission, the Independent Electoral and Boundaries Commission, the Public Service Commission, the Salaries and Remuneration Commission and the National Police Service Commission.
Others are Inspector-General of the National Police Service and his/her two deputies. Depending on the outcome of the International Criminal Court process, the President may have to replace Mr Francis Muthaura, who is secretary to Cabinet.
Other appointments to constitutional offices that may have to be dealt with in the same manner may arise if there arises vacancies in the offices of any of the current permanent secretaries.
Justice minister Mutula Kilonzo said: “Article 10 of the Constitution requires public participation. Therefore there must be competitive recruitment for all jobs. They must be advertised to give everyone an equal opportunity.”
He said the procedure that was followed to fill positions in the Commission on Revenue Allocation, Judicial Service Commission and Commission on Implementation of the Constitution should be followed.
Apart from public participation, the Constitution requires that the composition of the national executive shall reflect regional and ethnic diversity. The same is required for the appointments on the command of the Defence Force, National Police Service, commissions and independent offices.
President Kibaki’s side has prepared a list of those they want appointed to the various constitutional offices.
Stay in office
A key factor being considered by the strategists is the fact that constitutional office holders will no longer have the privilege of remaining in office at the pleasure of the appointing authority. The Constitution limits the number of years that specific state officers can stay in office and whether their terms can be renewed.
The Constitution says that members of commissions or holders of independent offices, unless they are ex-officio, will be appointed for a single term of six years. Most commissions have their members appointed for five years with the possibility of a further term of five years. But the Controller of Budget and Auditor General will serve for a term of eight years.
The office of the Attorney-General loses security of tenure. The AG, who will be nominated and appointed by the President with the approval of the National Assembly, can be removed at any time by the head of state.
The Director of Public Prosecutions, who takes up the roles of the current AG other than advising the government, has security of tenure. But the person who takes up the office can only serve for eight years.
The Chief Justice can only serve for a maximum period of 10 years or until attaining the age of 75 years, which is the retirement age of judges. If the 10 years elapse before the CJ attains 75 years, he or she may remain in office as a judge of the Supreme Court. The removal of a CJ is through a tribunal.
The inspector-general of police will serve for a single term of four years.
Members of the Judicial Service Commission, other than the CJ and the AG, will remain in office for a term of five years and are eligible for another similar term provided they remain qualified.
The same conditions apply for the secretary of the Public Service Commission.
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