Was Withdrawal of Nominees Lawful?

Thursday, 24 February 2011 00:00 BY YASH PAL GHAI

In withdrawing his nominations for the CJ, AG, DPP and the Controller of Budget, President Kibaki explained that he had “extensive consultations with a section of MPs” and justified his change of mind by considerations of the “national interest” which must remain paramount. Nevertheless he maintained that the earlier submission of nominations to the National Assembly was constitutional. Rather cautiously, the Standard expresses relief that “reason” has finally prevailed. The Daily Nation also proclaimed the “triumph of reason”. But the Star is euphoric, calling the President a “genuine statesman”, deserving of the “highest praise for his magnanimous decision to resume the recruitment process”.  It even goes on to endorse one of the nominees, describing Githu Muigai not only as possibly the “best candidate” for the AG, but also excellent material for the CJ. 
In this talk of statesmanship and excellent CJs, the Star and others who have showered accolades on the President have ignored the background to the President’s decision.  The President defended the constitutionality of the nominations in the face of the ruling of the High Court that the process and even the substance of his nominations were unconstitutional—a view which had the support of the Commission on Implementation, the Judicial Service Commission, the Attorney-General, leading lawyers, and ultimately the Speaker. His party was determined to topple the Speaker; not content with having brought the Parliament into disrepute, they were bent on destroying it. The last minute change of plans, led, we are told, by William Ruto and Uhuru Kenyatta, was motivated not by respect for the constitution, but expediency: the fear of Raila Odinga’s counter-strategy, the obstinacy of Amos Wako in his constitutional interpretation, and international and local pressures. Nor did the President respect the constitution when he announced the change of plans, without prior consultation with, or informing, the Prime Minister, contrary to the requirement of the National Accord of “constant consultation” (which perhaps saved Raila from a similar breach). Ultimately, the decision was based not on the constitution but politics--Kenyans have no reason to be proud of or grateful for this, nor for Wako’s advice, which he should have refrained from, since his own tenure of the office of AG is at stake (see Art. 75).
If the President is convinced that his earlier decision was constitutional, he is now willing to proceed on what he regards as an unconstitutional process. His justification is advice given to him by a “section of MPs” (we are not told what advice) and the “national interest” (we are not told what national interest: something that has just emerged?).  He should certainly ignore advice by a “section of MPs” which is likely to have been partisan, but more importantly, is in his view unconstitutional. The constitution is quite explicit on this. Article 2 says that the constitution is supreme law and “binds all State organs”; and that “no person may claim or exercise State authority except as authorized by this Constitution”—this is the rule of law. More specifically, the President is under a constitutional obligation to “respect, uphold and safeguard” the constitution.   
I am not trying to make a pedantic point. It is an elementary principle of law, even more important in relation to the constitution, that a person in whom the law vests a responsibility or power cannot abdicate it to another (unless expressly authorized to do so).  The official can seek advice—often it is wise, sometimes mandatory, to do so—but ultimately she must bring her mind to bear on the relevant issues in making her decision. We do not know on what advice the President made his original decision. Where did he get his legal advice from; surely not from one of the nominees? Was he under pressure from colleagues or officials who might have a stake in the appointments? Did he address his mind to the qualifications for the posts? Did he consider the broader principles that must inform public appointments, like inclusiveness and even affirmative action?
Despite his wonderful speech at the proclamation in praise of the constitution, the President, like presumably his principal advisers, has paid little attention to national values and principles inscribed in the constitution.  All holders of state office must exercise their authority and obligations in accordance with these values. The public suspicion is that the President ignores this rule. An example is his attempt to shelter his close associates from the ICC, which goes against the constitutional incorporation of international law, decision of the government and the national assembly in endorsing the Waki commission recommendations, and is in breach of fundamental principles of due process.
My principal concern is not with the politics or legality of the President’s change of mind. It is with fidelity to the constitution. Respect for the constitution, however inconvenient to the office holder, must underlie all state policies, laws and practices—now that we have a constitution supported by most Kenyans. The highest national interest lies in obedience to and compliance with it.
The writer is the former chairman of the defucnt Constitution of Kenya Review Commission.