Prudence: Marende calms the storm

By Martin Mutua

Speaker Kenneth Marende tactfully avoided being sucked into standoff between the President and the Prime Minister by giving them a ten-day window to resolve their disagreement and referring the dispute to two House committees.

One member decribed it as a ‘Solomonic judgement’ while others praised him for the manner he disarmed both sides to the dispute and brought in a different group to delve into the crisis, which has driven the Grand Coalition into a spin.

The Speaker who bore the burden of ruling if the four nominations Mr Raila Odinga accuses President Kibaki of making without regard to exhaustive consultations were within constitutional threshold, passed over the task of verifying the truth of

the claims by both sides to the Justice and Finance committees.

Underpinning his ruling to the post-election experience that was pacified with Kibaki-Raila power-sharing deal, Marende warned Kenya’s leadership: "It will be a pity and a severe indictment of our collective leadership if in time to come, history shall record of our country in general and of our leadership in particular that we learnt nothing from history."

While excusing himself, on the grounds of law and House Standing Orders, from giving the ruling sought in the controversial nominations, he referred it to the Justice and Finance House Committees.

"If I were a judge sitting on the Bench in a court of law, I would rule that the matter proceed to hearing and that the objections raised be heard and determined at that stage," he said.

Withhold any determination

The backbone of his ruling lay in three crucial paragraphs in the 29-page statement on a matter raised by Central Imenti MP, Gitobu Imanyara: "I accordingly withhold any determination or comment on the veracity and weight to be accorded to the letter received from Prime Minister."

Kibaki (right) and Prime Minister Raila Odinga (left) may now have to go back to the drawing board. [PHOTO: File/STANDARD]

"I accordingly decline to make a determination as to whether or not the nominations transmitted to my office by the Office of His Excellency, the President, were or were not constitutionally arrived at nor whether there was or was not consultation within the meaning of the Constitution."

"I further direct the two letters (Kibaki’s and Raila’s) be forwarded to the departmental committees on Justice and Finance … for disposal as provided for in the Standing Orders and the Law."

There was a sigh of relief in both sides of the House, both of which had been bracing for battle of numbers, as the ruling fell short of annulling or upholding the Kibaki appointments.

The two committees, Justice headed by Mr Budalang’i MP, Ababu Namwamba, and Finance by Nambale MP, Chris Okemo, has up to next Thursday to make the report.

Will be scrutinised

Three of the nominations — Chief Justice (Alnashir Visram), Attorney General (Githu Muigai) and Director of Public Prosecutions (Kioko Kilukumi) fall under Namwamba’s docket while that of the Comptroller of Budget (William Kirwa) will be scrutinised by the Okemo committee.

Many had expected Marende would say he finds the nominations irregular or at least to reject some while allowing others to be tabled for debate. But few anticipated his ruling yesterday, and that Kenyans would have to wait longer to know the fate of the nominees.

He ruled on a day the High Court found the nominations unconstitutional. Justice Daniel Musinga yesterday said it would be unconstitutional for any State officer or organ of the State to carry on with the process of the approval and eventual appointment to the four offices based on the nominations made by Kibaki on January 28.

With the declaration, he effectively put the process on hold until the hearing of the petition or further orders of the court.

Marende, however, sidestepped the court decision, saying Parliament would make its own determination when the committees table their reports.

House Speaker Kenneth Marende on Thursday withheld ruling and referred President Kibaki's judicial nominations to two House Committees.

After saving the two principals the agony of having Parliament judge them, the Speaker made it clear they still have opportunity to reach an agreement.

"Needless to say, the window remains open, and it is to be hoped, that developments may occur that make this important nomination process uncontested on the basis either of constitutionality or otherwise and thereby render such guidance and directions unnecessary," he said.

The Speaker said the request by Imanyara for a ruling on the constitutionality of the Kibaki nominations was premature because by the time he asked for the ruling the names were not properly before the House.

Intercepted correspondence

"I have not been able to find any precedents of this House in which the Speaker intercepted correspondence addressed to the House and unilaterally made a determination as to its legality or validity, and returned it to the nominating authority," he said.

Last Friday the President, through Head of the Civil Service, Francis Muthaura, sent the list of the nominees to Marende. Raila later wrote to renounce the process. The PM challenged the nominations prompting Imanyara to request for the Speaker’s ruling.

Marende reflected on the state of the country in 2008 as it burned because of disputed presidential election saying: "We were on the brink of the precipice because a dispute relating to an election was not referred to the Judiciary because of a lack of faith in the Judiciary. It is this very Judiciary whose head is now sought to be appointed by a process, entrenched by the New Constitution resoundingly enacted by the people of Kenya for themselves."

He warned few countries have had the opportunity for a second chance like Kenya and events happening around the world that could have been easily avoided or acted upon while there was an opportunity can rapidly deteriorate and become unmanageable. Several MPs shouted back ‘Egypt! Tunisia!’ at this point.