Okech Kendo In times of stalemate, like now, those who can be heard above the confusion predictably effuse patriotism.
There is usually an overflow of good tidings, with pleas to the "two principals" to put the interests of the country first. It is the safest way to avoid the elephant in the room.
Yet the patriots do not put the frequent disputes in context before apportioning blame.
The President’s unilateral reappointment of Justice Aaron Ringera to fight corruption after a low-keyed first tenure triggered a similar stalemate in 2009.
Earlier, the President’s unilateral posting of the Vice-President as Leader of Government Business in the House without consultations triggered doubts on the President’s commitment to constitutionalism. In all the cases the two principals were asked to put the country first. In each occasion the President was found to have acted without "consultations" and "compromise".
But the nominations shelved on Tuesday were much more explosive, coming after the declaration of the Constitution, which seeks to trim presidential excesses. Even if President Kibaki and Prime Minister Raila Odinga had "consulted" and "compromised", the withdrawn nominations would still have been "unconstitutional". But President Kibaki proceeded, after tiring of consultations, to impose "duly" nominations. The Speaker received a letter from the Head of the Civic Service, Francis Muthaura, on behalf of the President, affirming the disputed nominations. The Speaker also got a letter from the Prime Minister discounting the presidential pickings.
There was no public participation. There was no involvement of the Judicial Service Commission. The nominee for the CJ had not been vetted, and women were sidelined.
Three of the ‘Ocampo Six’ allied to the President, were seen to be pushing for a ‘strengthened’ Judiciary so they could be tried locally. Two of the three are also presidential aspirants, who defended the nominations with personalised interest and hubris. Which means the President’s faction of the coalition put The Hague trials and the Kibaki Succession ahead of the national interest. The President fell into their trap.
Presidential unilateralism was tolerable yesterday, but it is now unconstitutional. Worse, the President and his informal advisors have not noticed the ground beneath them has shifted. It has shifted rather dramatically, and traumatising too, for an outgoing President who has had eight years of one centre of Executive power.
A tame Executive is also distressing for wannabe presidents who were nurtured in the corridors of impunity. How else would you explain explosions like, "Kwani Hague ni mama yake?" from someone who wants to be our president? Raw ambition can, and has fled with its victim. The presidency and its cronies were so set on the wrong road when they dismissed the legal advice of State officers you pay to show them the way.
The Attorney General, the Minister for Constitutional Affairs, the Chief Justice, Judicial Service Commission, and the Speaker were dismissed with due contempt by Kibaki Succession outsiders. You cannot rely on Constitutional Affairs minister Mutula Kilonzo and AG Amos Wako to protect the family python.
Canines held back
But it is Wako’s slap in court on Monday that scuttled the plot. The President also refused to listen to CJ Evan Gicheru. Gicheru told the President he did not like the way he was being replaced. This is the man who swore-in the President at night fall on December 30, 2007, as tears of blood rolled across the land of peace.
The Speaker, who was accused of placing constitutionalism ahead of presidential ego, was targeted for lynching. But the canines were ordered back to the kernel before they could bite Kenneth Marende. Was the withdrawal a tactical retreat? With numbers in the House, hawkish politicians could not allow the President to be embarrassed.
Presidential ego seemed more important than rebuilding the Judiciary. But the President finally understood that when you are holding an elephant by the hind legs, and it seems like it wants to flee, the best reaction is to let it go. The President let the jumbo go 24 days too late: it had splattered dirt on its captors.One does not need victims of presidential fever and Ocampophobia to understand it is foolhardy to ignore an idea whose time has come.
The stalemate also exposed the tendency to impose 50:50 blame sharing ratio between the coalition partners. It is like the two rulers are always on the same wavelength on contentious issues.
For the 24 days the stalemate lasted, those who claim they have the numbers to impose their will said the President had the "mandate" and is the only recognised "appointing" authority. Voters are supposed to have donated the mandate. This claim has been disputed by almost everyone who has read the Constitution with impartial minds.
Finally, President Kibaki must ask his friends, including the VP, why they were driving him down the wrong path. King Hiero of Syracuse is good reading for the President.
Once when speaking to his enemies, the king was told he had stinking breath, much to his dismay and upon returning home bean to berate his wife.
"How does it happen that you never told me of this problem?" The wife being modest, and too loyal to ruffle the chain of command, said: "Sir, I had thought all men’s breath had smelled so."
The writer is The Standard’s Managing Editor Quality and Production. email@example.com