Why Kibaki withdrew list of nominees

By Standard TeamPresident Kibaki defused rising tension in the Grand Coalition by withdrawing his list of nominees to four key constitutional offices, and reopening consultations with Prime Minister Raila Odinga. The President climbed down from his weekend position that he acted within his constitutional mandate amid sustained international pressure to restart the consultations. The pressure upped by European and US envoys in Kenya on Monday was capped yesterday by the entry of Kofi Annan, the former UN Secretary General, who praised the ruling by Speaker Kenneth Marende on the nominations, which Kibaki contested. Dr Annan wields leverage with Kibaki and Raila for brokering Kenya’s peace deal in 2008 and subsequent power sharing.
The President, who last weekend said he had left the fate of his nominees to the court, also backtracked a day after Attorney General Amos Wako dealt a blow to his case by telling a three-judge Bench the nominations were unconstitutional. Wako is the President’s chief legal advisor and his statement is said to have stunned the President’s side, which concluded their case had been severely dented. It is at this stage that it is reported they started working on an exit plan for the President, and one that would ensure his dignity remained intact.
It is also believed Raila’s sustained reconciliatory statements at a time the President side was lambasting Marende and plotting to censure him and even how to precipitate a Raila walkout from the coalition, cast the PNU and Kibaki as the aggressor and that is when Plan ‘B’ was mooted.
Sources also reported the President was wary the rising tension could poison the road to the General Election, due next year, a fact that could compromise his legacy and put him at loggerheads with the international community. Other sources revealed PNU side was stunned at the popularity of Marende’s ruling among Kenyans, hence the last-minute effort to endear itself to the public.
Court of Appeal
But the final stroke on the camel’s back could have been the declaration by the Constitution Implementation Commission, which is led by lawyer Charles Nyachae it would seek the Court of Appeal, sitting as the Supreme Court, to interpret the Constitution in relation to nominations.
Kibaki, however, maintained in his statement he had broken no rules when he submitted the original list to Parliament, last month.
"I reiterate that the Legal and Justice Committee of Parliament and the Committee on Finance and Trade concluded that I acted within my constitutional mandate in the execution of the nominations," he said at the Kenyatta International Conference Centre, Nairobi. He spoke after meeting with 119 MPs from his PNU side, and some allied to Eldoret North MP William Ruto.
Kibaki told the nation after extensive consultations with a "section of MPs" and keen on ensuring "national interest remains paramount", he had decided to task Judicial Service Commission to fill the position of Chief Justice for which he had nominated Justice Alnashir Visram. This was the body that he was criticised by Marende and professional, rights groups and civil society of sidestepping and submitting the list before consultations with PM were concluded.

President Kibaki addresses a press conference to move forward the implementation of the new Constitution at Kenyatta International Conference Centre, Nairobi. [PHOTO PPS]

He also announced the positions of Director of Public Prosecutions and Controller of Budget – for which he had nominated Kioko Kilukumi and William Kirwa — would be advertised and filled by Public Service Commission. When the PM addressed the nation, he asked that PSC, which his associates claim is not yet compliant with the new law, be reconstituted before it can undertake the task.
On the position of AG, for which he nominated Githu Muigai, the President announced he would consult Raila. Though PM, who was in a burial in Maragwa, had announced his meeting with Kibaki would start at 5:30pm, had raised no objections against Githu, his residential neighbour in Nairobi. But he had questioned the process of nomination, and asked the jobs be advertised.
The President’s decision was seen to have been reinforced by Wako’s insistence in court the nominations were unconstitutional. Waiting for court to reach a verdict in a case in which your own lawyer admits you were wrong, is not wise, Kibaki’s advisors are believed to have told him.
Independent sources revealed the ‘hardliners’ around the President advised that he withdraws, but still ensure he maintains the upper hand in the consultations.
Political temperatures
Annan sent personal letters to Kibaki and Raila appealing to them to agree on the nominations, and help reduce the political temperatures, especially in Parliament. The communication was announced through a statement released by the Panel of Eminent Persons yesterday.
"Kenya turned a new page on August 27, 2010, and the momentum generated must not be allowed to dissipate. Much is at stake. I appeal to you to remember the needs and aspirations of the people for a prosperous and stable Kenya," Annan was quoted telling them.
The constitutional commissions also gave a different view from the President and PNU’s, which insisted Marende acted outside his mandate and strove to gag the Legislature and dictate to the Executive.
The JSC stated from the outset the nominations were unconstitutional. As the standoff over the nominations raged, Kibaki appeared lonely as many credible organs of Government lined up against his position.
The private sector was not left out with the influential Media Owners Association on Monday calling on Kibaki to withdraw the names to stem the acrimony. But it was not Wako alone who pulled in the opposite direction: Justice Minister Mutula Kilonzo, too, wondered why his advice that the positions be advertised was ignored.
Not lost on Kibaki was the fact that the credibility of the Judiciary and the Budget Office, whose heads are supposed to be independent, was undergoing a serious erosion of its confidence. Worse still, his action was being seen alongside the attempt to have Kenya’s case at International Criminal Court deferred on the basis Kenya has a credible judicial system, which can independently carry out trials of post-election suspects.
The President was also grappling with accusations he wanted to ensure there was a ‘friendly’ Chief Justice who could be trusted to ‘manage’ trial of the violence suspects.
The President’s speech was done in the first person, and appeared to rule out the PM’s input in the choice of the DPP, and Controller of Budget. The two may, however, sit and agree on a name from the three that the JSC would forward.