Two parliamentary committees asked to establish the legality of nominations to four key constitutional offices over which President Kibaki and Prime Minister Raila Odinga clashed, have been sucked into the Grand Coalition Government’s vicious rivalry.
So intense are the differences within the Justice and Finance Committees that on Sunday it seemed unlikely they would speak with one voice when they report to the House on Tuesday.
It is also doubtful if Parliament will manage to disentangle the stalemate between the two principals, given the divisions and competing interests that have captured the committees, and the burden may now fall on the shoulders of House Speaker Kenneth Marende to give a ruling on the Kibaki list, based on the principles of law and the National Accord.
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The committees were to report to Parliament last Thursday, but asked Marende for more time, hence Tuesday’s deadline. The pressure on commitees springs from the fact that among the offices whose nominees the principals are deadlocked is that of the Chief Justice, whose current holder Justice Evan Gicheru must vacate office in two weeks.
Sources within the committees revealed the coalition wars are threatening to derail deliberations of two committees even as it emerged none of them is ready with a report because of sharp divisions within them.
On Sunday, the Justice and Legal Affairs Committee promised to announce the resolutions reached by its members by 1pm, but five hours later they emerged from their meeting at the Windsor Hotel empty-handed. Worse still, two Orange Democratic Movement MPs in the committees claimed to have received threats because of the positions they have taken.
Nominated MP Millie Odhiambo and Kisumu Town West MP Olago Oluoch claimed they received threats of withdrawal of their personal security, if they did not support Kibaki’s list.
Odhiambo also claimed former Justice minister Martha Karua and Gwassi MP John Mbadi received similar threats.
"I suspect the threats are because of the ongoing debate, but I will raise the issue with the Speaker and the Commissioner of Police," said Mbadi who is in Finance.
"If I am the last woman standing, I would stand for justice, I would not be intimidated," vowed Odhiambo.
Olago said: "Clearly it must be linked to the work we are doing."
‘Considerable progress’Justice Committee Chairman Budalangi MP Ababu Namwamba, however, reported his team had made "considerable progress", but would reconvene today to finalise its report to the House.
"As you can see we are all very happy because we have made considerable progress," said Namwamba in his brief comment.
"We are preparing a report, not to be tabled to the public, not in the funerals, but to the National Assembly," said Namwamba in explaining why he would not divulge details. He added: "We are at the very tail end of our mandate. We will table our report on Tuesday, but as at now the report is not ready."
But separate interviews with other committee members revealed there were more areas of disagreements than consensus.
While some said they had resolved to recommend the rejection of the nomination of Justice Alnashir Visram for Chief Justice so for the process to begin afresh, another group said they had agreed to recommend the rejection of the whole list.
There also those who want the CJ nominee dropped and the fate of the other two decided by the House.
The Justice Committee is handling the nomination of Prof Githu Muigai as Attorney General, Mr Kioko Kilukumi as Director of Public Prosecution and Justice Visram as CJ. The committee failed to break the deadlock over the nominations despite earlier reports, which indicated they only rejected the President’s choice of CJ.
No deal to presentThe Finance Committee probing the nomination of William Kirwa, as Controller of Budget also made little progress. Its members, led by Nambale MP Chris Okemo had travelled to Naivasha for a two-day retreat, but by Sunday afternoon, had packed their bags and left without any agreement on what to tell Parliament.
Finance Committee member Phillip Kaloki disclosed members were still grappling with the mandate given to them by the Speaker. He revealed members had neither vetted Kirwa nor solved the constitutional questions raised by Kibaki’s nominations.
"We are still working on the constitutional issues," said Kaloki.
Some members of the Justice Committee also told journalists on Saturday they unanimously agreed that Kibaki followed the law when appointing the nominees, and that ‘consultations’ between the President and PM as envisaged in the Constitution do not necessarily have to end up in agreement.
But as the committees splintered along party lines, the President’s allies openly lobbied for the endorsement of the four names as forwarded to Parliament by Kibaki.
An ODM MP who asked not to be named corroborated Kaloki’s account of deadlock in the Finance team.
The ODM MP disclosed the committee decided not to proceed with vetting Kirwa for suitability because they were not "able to resolve the constitutional question."
A dispute has arisen over whether the President should have adhered to Section 166 of the Constitution which demands that the CJ be vetted by the Judicial Service Commission, and then be subjected to approval by Parliament, before appointment by the President.
But those supporting President Kibaki say the President used the transitional clause, which empowers him to appoint the successor of the current CJ, subject only consultation with the Prime Minister.
Yet even on this score, there would still be the question of constitutionality given the PM’s insistence on a competitive process for picking the nominees. The pro-Kibaki side also contends Clause 166 relates to subsequent holders of the office after transition into the new laws.
Heated debateLast month Raila protested he was not consulted over the appointments, and wrote to the Speaker disputing the nominations by Kibaki. Marende then passed the mandate of resolving the dispute to the two committees after a heated debate.
The deadlock in the committees continued as civil society groups, led by Mr Morris Odhiambo, the President of the National Civil Society Congress (NCSC), pleaded with Marende to reject all the nominees.
Marende has alluded to the fact he would in his ruling "uphold the independence of Parliament", "uphold the law" and "live within the Constitution."
Lawyers argue he has given sufficient hints on how he would rule tomorrow by acknowledging validity of Justice Daniel Musinga’s ruling outlawing the nominations and the declaration that "numbers" alone cannot decide constitutional issues involved in this crisis.
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