Head of Civil Servants Francis Muthaura (right) with Kennedy Kihara and Prof Nick Wanjohi when they appeared before the Parliamentary Select Committee at Parliament Buildings in Nairobi on February 8th, 2011. PHOTO/STEPHEN MUDIARI
By JOHN NGIRACHU jngirachu@ke.nationmedia.com
Posted Tuesday, February 8 2011 at 21:00
In Summary
- Principals rejected advice to advertise government positions, Muthaura tells House committee
President Kibaki and Prime Minister jointly rejected the advice of their aides to advertise four key government positions that are the cause of the current storm in government, a parliamentary committee has heard.
A technical team composed of the two principals’ aides had made the recommendations that the posts be filled competitively.
The team comprised Head of Civil Service Francis Muthaura, the President’s Private Secretary, Prof Nick Wanjohi, the Prime Minister’s permanent secretary, Mr Mohammed Isahakia and chief of staff Caroli Omondi.
Officials from the principals’ offices told Parliament’s Finance, Trade and Planning Committee the proposal was presented to the two principals on January 6 and rejected the same day.
Mr Muthaura and Mr Omondi appeared before the Chris Okemo-led team as the justice committee head by Ababu Namwamba debated whether it was sub judice to consider the matter, which is before a court.
Speaker Kenneth Marende will rule on the matter on Wednesday.
In the Okemo committee meeting, Mr Muthaura said a draft advertisement inviting applicants for the post of Chief Justice had been prepared by the Kenya Law Reform Commission, but was ignored when the two principals rejected the idea.
This was confirmed when the team from the Prime Minister’s office made their presentation to the committee later in the evening.
Mr Muthaura said it was then felt the recruitment of the Chief Justice, Director of Public Prosecutions and the Attorney-General would require the input of the Judicial Service Commission.
A panel would be set up to receive the applications after the advertisement, he said, shortlist them and finally send a list to the two principals, who would then nominate those to be vetted by Parliament.
According to Mr Muthaura, the principals’ rejection of the proposal to advertise was rejected on the basis of a legal opinion offered by a team led by the President’s adviser on legal matters, Prof Kivutha Kibwana.
Prof Kibwana told the Finance team that his opinion was based on provisions in Chapter 15 of the Constitution on Commissions and independent offices, whose recruitment would fall outside the work of the Public Service Commission.
“The committee that had suggested the advertisement was in conflict with the law,” said Prof Kibwana.
But according to Mr Omondi, the idea to advertise the jobs was based on the fact that a panel would be established to handle the applications.
It was to include members of the Judicial Service Commission, the Kenya Law Reform Commission, the Law Society of Kenya, the Public Service Commission and representatives from the offices of the two principals.
It was agreed that candidates would be identified through head-hunting or from the private sector, through advertising, Mr Omondi said.
“If we had gone through that route, the role of the President’s office and that of the Prime Minister would have been secretarial,” he added.
He said the principals felt that in earlier appointments, there had been confusion about whether Parliament or the Executive should interview the applicants.
The principals’ decision to ignore the advice to advertise drew criticism from Mr Okemo, who said it would have ensured participation of the public.
Diminish power
“What would possibly harm the President if he advertised for the Controller of Budget? How would he be injured or how would that diminish his power?” asked the Nambale MP.
Nominated MP Musikari Kombo said the original advice was great, and the principals would have adhered to it had they been genuinely thinking about Kenya.
In their presentation earlier, Ms Priscilla Nyokabi and Mr Christopher Gitari of the International Commission of Jurists had said the positions should have been advertised. But Mr Muthaura argued that the two principals represented the public interest.
“There is nobody else, apart from the Parliament collectively, who represents the public interest more than the two principals. They have the numbers behind them,” the Head of Civil Service said.
Mr Okemo argued that with the committee having effectively handled the appointment of members of the Commission on Revenue Allocation, the same should have been allowed to happen with the office of the Controller of Budget.
Trouble appears to have begun when the two principals asked their aides to come up with the names, after which they would consult, reach a consensus and forward the nominees to Parliament.
On Tuesday, the teams tore into each other, with Mr Odinga’s legal adviser, Mr Miguna Miguna, even dismissing the legal opinion offered by his counterpart on the President’s side that is said to have formed the basis for the rejection of advertising.
“It is considered irresponsible to seek a legal opinion from anybody other than the government’s legal adviser, the Attorney-General. This legal opinion is not worth the paper it is written on,” said Mr Miguna.
The PM’s team that included lawyer Mugambi Imanyara, argued that there had been no consultation as outlined in the National Accord, and said some of the documents presented were fake.
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