House Speaker Kenneth Marende’s razor-sharp ruling was sweet to Prime Minister Raila Odinga’s Orange Democratic Movement’s ears, and a sting to that of President Kibaki’s Party of National Unity.
The crux of the Speaker’s ruling was that the ‘consultations’ between the President and PM as envisaged in the National Accord must result in a ‘compromise’, and was therefore unconstitutional since the PM’s wing of the Grand Coalition Government contested it. "The effect of this Ruling is that this House shall not proceed with any process of approval in respect of the nominations received from [the] President...Additionally, the work of the Departmental Committees of Justice and Finance and their respective Reports, on this matter shall lapse forthwith in their entirety,’’ he ordered.
The Speaker added that the House, "shall await nominations for the respective offices to be forwarded in the manner provided for by the Constitution, read in totality and ensuring full compliance therewith."
He also warned his ruling was not "a commentary on the suitability" of the four nominees for key constitutional offices.
But it was not just ODM, with the exception of section of Rift Valley MPs allied to Eldoret North MP William Ruto, toasting to Speaker’s decision. Professional, rights and other lobby groups, especially those drawing membership from the legal fraternity, saw in the ruling a ‘difficult’ triumph of Kenya’s effort to create a credible, independent and renewed Judiciary.
There was, however, a stampede in PNU as its Cabinet ministers, including Deputy Prime Minister Uhuru Kenyatta and Mr Kiraitu Murungi, led over 30 MPs in disparaging the ruling, and vowing to fight it to the bitter end.
They did not blame Marende directly over the ruling, but instead directed their anger at Raila whom they claimed dictated the direction the ruling took.
"Are we saying that the country will not move forward until Raila says so?" asked an angry Uhuru.
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But ODM MPs and their allies said Marende struck a blow for the rule and accused PNU of threatening the Speaker and flawed understanding of the Constitution.
Budalang’i MP Ababu declared that Marende delivered an "historic ruling under difficult circumstances" in pursuit of the ideals of the new charter as Immigration minister Otieno Kajwang accused PNU leaders trying to force Marende to bend the law to suit their schemes.
No sooner had Marende delivered his ruling reversing President Kibaki’s contested nominations than rival MPs convened press conferences to either denounce or praise the verdict.
Mr William Ruto and Chepalungu MP Isaac Ruto joined the PNU group in their news conference. Kiraitu accused Marende of usurping the role of the Executive and acting against separation of powers, while the Chepalungu MP called it ‘draconian’ and an attempt to "gag Parliament."
The ministers denouncing the meeting included those perceived to be close to the President: Mr Amos Kimunya, Mr John Michuki, Prof Sam Ongeri and Mr Ali Mwakwere.
To take whatever means
A fuming Uhuru accused Marende of appeasing Prime Minister Raila Odinga and threatened to take "whatever means available to ensure" Kibaki’s enjoys unfettered power.
Ruto said they would try to overturn Marende’s ruling in Parliament next Tuesday by seeking interpretation of Article 161 of the new Constitution, which he alleged Marende had breached by ‘allegedly, overturning the peoples’ sovereign will.
"It’s obvious the Speaker has chosen to speak to another audience other than Parliament," claimed Ruto.
In making his ruling Marende argued the window he left open for Kibaki and Raila to seize and consult afresh had closed without any sign of compromise between them.
"The Speaker’s efforts to contain the escalation of differences were clearly unsuccessful and the time has therefore now come to make difficult decisions," he said laying the ground for his sharp-edged ruling that lacked any pretence of striking a middle ground in the contestations raised by the two sides. In concluding his ruling, Marende assured the House and Kenyans: "May I reaffirm that the Chair remains faithful to the Oath off Allegiance which I took on Tuesday, 15th January, 2008." This stoked memories of the day ODM voted for him and PNU against his candidature for Speaker to the last man.
His ruling decisively took the raging battle over the nominations of Justice Alnashir Visram for Chief Justice, Prof Githu Muigai (Attorney General), Mr Kioko Kilukumi (Director of Public Prosecutions) and Mr William Kirwa (Controller of Budget) out of Parliament.
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| House Speaker Kenneth Marende: His ruling that nomination process of the four state officers begins afresh excites Raila group but stuns Kibaki camp which declares fight back. |
Two weeks ago when the matter cropped up, however, Marende had warned the constitutionality aspect of it would not be decided on numbers. On the CJ’s nomination, Marende specifically cited sidestepping of Judicial Service Commission in the nomination and for all the other three posts, failure by the principals to compromise.
Express disagreement
"I find and rule that the constitutional requirements…requiring consultation subject to the National Accord and Reconciliation Act are not met if National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between President and Prime Minister," Speaker told the Chamber that was at this time houseful.
He also rendered inconsequential the reports, arising from probes by the Justice and Finance committees, which had threatened to turn the House into the theatre of the absurd because of divisions among members along party and ethnic lines.
The ruling stretched the sitting of the House for an extra 10 minutes without the requisite prior motion of adjournment. He delivered the landmark ruling before the Finance committee could move the motion for the House to either approve or reject its report. He added the ruling stopping the motion was equally applicable to Justice Committee.
The Speaker revealed he had been reluctant to make a summary determination on the matter last week — when he referred the dispute to the two parliamentary committees to buy time in the hope the two principals would resolve the matter.
"This was not to be. Indeed, what was an unsatisfactory position at the time has grown by leaps and bounds in the past one week or so, to become the source of considerable anxiety in the whole country," Marende explained.
Acknowledging the principals had pledged to accept the outcome of the parliamentary process, the Speaker proceeded to rule on the remainder of the eight outstanding issues to an audience that hung onto his every word.
On consultations between them he said the required standard of consultation was "not so high as to mean concurrence or agreement" and thereby "become a recipe for deadlocks and brinkmanship."
On competing views that the President could headhunt the CJ and another rooting for a competitive recruitment, Marende upheld the involvement of JSC. However he ruled serving judges are eligible for appointment to CJ office even before vetting because the House set a precedent by confirming the appointments of two judges and a magistrate to JSC. "If any of the judicial officers is found unsuitable to serve after undergoing vetting they will have to leave," he added.
He argued the nominations could not be nullified on grounds they did not uphold gender equity, because "gender parity needs to be considered in the broad context of all the constitutional appointments available." The ruling, which had kept the country on the edge, was requested by Imenti Central MP Mr Gitobu Imanyara.
— Additional reporting by David Ochami
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