By MACHARIA GAITHO mgaitho@ke.nationmedia.comPosted Saturday, February 19 2011 at 21:00
In Summary
- The contested nominations were dealt a big blow early on when the high court ruled them uconstitutional. AG Amos Wako had also agreed with the plaintiffs
President Kibaki is the proverbial sphinx; forever unmoved, untouched and immobile even when everything around him is crumbling and everyone is running helter-skelter.
Hence the import of his coming out of his shell on Friday to give a rare media briefing contesting National Assembly Speaker Kenneth Marende’s ruling throwing out his nominations for key constitutional offices.
It was a brief and measured statement. The President restated his conviction on the legality and constitutionalism of his contested nominations for Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget.
The President accused Mr Marende of breaching the divide between the Legislature and the Executive by declaring the nominations unconstitutional, and usurping the powers of the courts that are mandated to adjudicate on constitutional disputes.
The carefully worded statement, in typical Kibaki fashion, was devoid of the ill-temper and histrionics displayed by PNU loyalists in the immediate aftermath of the ruling in Parliament the previous day.
It did not accuse Mr Marende of partisanship or incompetence, nor did it come with any references to plans for a political onslaught against the Speaker as intimated by ministers and MPs in the PNU alliance planning to take the fight to the floor of the House come next week.
From the President’s statement, the preferred course of action was actually no action – just to wait for the decision of the constitutional court.
That is interesting because the contested nominations were dealt a big blow early on when the High Court ruled them unconstitutional. The judge then had no choice because, instead of defending the case, the government’s chief legal adviser — Attorney-General Amos Wako — agreed with the plaintiffs.
President Kibaki’s allies were incensed because they saw Mr Wako as an interested party who had cynically betrayed his client. Mr Wako had prior to the case expressed his views against the nominations in the Judicial Service Commission statement, as had Chief Justice Evan Gicheru, another incumbent set for replacement.
It follows, therefore, that hoping for a favourable court ruling is a risky strategy in an environment where the AG has openly taken a position against the government and the Judiciary is aggrieved and might be only too happy to hit back.
Viewed so, it might seem like the President is looking for a graceful way out. But the very fact that he came out with the statement indicates it is something he feels strongly about, and will fight as hard as he can to protect his Executive powers.
And in this case, it is about protecting his turf not just from encroachment by the courts or the House Speaker, but from his coalition partner and rival Raila Odinga.
President Kibaki does not often roar, but when it comes to a political war, he will wade in with subtle ferocity that catches his foes off-guard.
On the same day President Kibaki was speaking, Prime Minister Odinga was taking a contrary position in support of the Speaker’s ruling. But he was careful not to gloat or to proclaim victory, repeating his constant mantra since the feud broke out that between him and the President, a compromise would be found. He also restated that the dispute does not threaten the working or stability of the coalition government.
We thus have a situation where the two principals, despite sharply divergent positions that show no signs of being bridged, are talking moderation. But their respective sets of acolytes are bruising for battle that is likely to be waged viciously over the coming days and weeks in Parliament and elsewhere on the political soapboxes.
No less than the presidential succession battle is at stake. PNU troops led by Deputy Prime Minister Uhuru Kenyatta, reinforced by the alliance with ODM rebels led by suspended Cabinet minister William Ruto, are more than keen to take advantage of the shifting sands to take the battle to Mr Odinga.
They are convinced that they have the momentum of numbers in Parliament and the strength of their respective constituencies to isolate the Prime Minister and scupper his prospects for 2012.
However, their battle plans might have to be tempered with indications that the wider public opinion is generally against President Kibaki’s nominations, in favour of Speaker Marende’s ruling; and therefore implicitly in support of Mr Odinga if it comes to a political showdown.
The tricky thing in such an analysis is that there has been so far, at the time of writing this, no national opinion poll on the issue since Mr Marende’s ruling on Thursday.
Public reactions in newspaper letters to the editor, vox pops, radio and TV call-ins and SMS polls all indicate overwhelming opposition to President Kibaki’s nominations.
Such informal surveys obviously cannot be taken as scientific indicators of public opinion. But still they cannot be ignored because trends indicate they often offer a fair reflection of prevailing attitudes.
If so, there might be danger for the President in going against the general public mood.
The President and his team have to overcome perceptions that the nominations were unilateral and in disregard of the Constitutional and National Accord requirements for consultation between the two principals on every major decision.
There is also the perception that the nominations were biased towards appointment of friendly or malleable Chief Justice, Attorney-General and Director of Public Prosecutions.
The President’s allies may well have the numbers in Parliament to mount a formidable battle, but they might be fighting against the tide of popular opinion if, indeed, the public is generally hostile to the nominations.
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