By Biketi Kikechi
President Kibaki has thrown caution to the wind and adopted ruthless politics, especially now that his protagonist – Prime Minister Raila Odinga
— is fighting from a corner.
Raila was in Ethiopia on Friday when Kibaki nominated Court of Appeal Judge Alnasir Visram for the position of Chief Justice, Prof Githu Muigai (Attorney General ), Kioko Kilukumi (Director of Public Prosecutions and Mr William Kirwa (Controller of Budget).
Looked at keenly, Kibaki appears to have done his homework well when picking the nominees because of the simple majority rule for the appointments to be approved by Parliament.
It is likely he will receive the backing of MPs from Mt Kenya region, Rift Valley, Eastern and those supporting the appointment of a CJ from a minority community.
Uproar over decision
The appointments have drawn condemnations from politicians, civil society, the Federation of Women Lawyers and International Commission of Jurists Kenya.
The President was working against time because he was expected to prove to African Union meeting in Addis-Ababa that a credible Judiciary would handle the case of the Ocampo Six.
The two principals had on Thursday disagreed on the nomination of the CJ after Raila proposed the name of Justice Riaga Omollo while Kibaki insisted on High Court Judge Paul Kihara. The Prime Minister then left for the AU Summit in Ethiopia, only to be informed about the appointments by his PS Mohammed Isahakia.
Reports in the electronic media said the PM’s office sent Miguna Miguna and Mutakha Kangu to lobby against the deferral of the ICC case against the six alleged suspects.
ODM also lost on that front, after the AU Council of ministers unanimously endorsed the Government’s push to have the cases deferred.
Kibaki appears hell bent on humiliating Raila at every given opportunity, only last week he teamed up with the PM’s rivals William Ruto and Uhuru Kenyatta at a rally in Eldoret.
Walking tight rope
Raila cannot afford to paralyse Government because he is fighting from a disadvantaged position, thanks to the National Accord.
It is none other than ODM parliamentary group secretary Ababu Namwamba who said his party was walking ‘a tight rope’ and blamed the drafters of the National Accord and Reconciliation Act for not providing an express conflict resolution mechanism.
According to the Accord, the coalition shall stand dissolved if the Tenth Parliament is dissolved, coalition parties agree in writing to go their separate ways, or one partner withdraws.
But Namwamba said if the Orange wing pulled out of the coalition, President Kibaki’s Party of National Unity "would continue ruling as if nothing happened".
Contrary to public perception, the Accord does not force the country to hold elections if one of the parties walks out.
Namwamba was quoted saying: "ODM’s choices are quite limited. The dissatisfied party can only appeal to chief mediator Kofi Annan or call mass action and I don’t think Kenyans are ready for that."
JSC reaction
Raila came back from Ethiopia yesterday breathing fire. He rejected the appointments and warned that President Kibaki had thrown the country into a constitutional crisis.
Section 24 (1) of the Sixth Schedule in the current Constitution allows the President to appoint a new CJ and the Deputy CJ subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.
President Kibaki did not appoint the Deputy CJ perhaps reserving the slot for ODM. Reliable sources had earlier told The Standard On Sunday that High Court Judge Hannah Okwengu had been proposed for the position.
The President ignored calls by some Judicial Service Commission (JSC) members who wanted the appointment of the new CJ to be done through a transparent and accountable process.
"Our wish was to advertise the position, get three names for the principals, who would then as provided for under Schedule Six of the Constitution, pick one and forward to Parliament for approval before appointment by the President," said Justice Isaac Lenaola. He said LSK was free to propose its own formulae for appointment of the judges.
Under the Sixth Schedule, the President is expected to consult the Prime Minister as provided for under the National Accord to nominate the Chief Justice.
Critics, however, argue that the process would be open to abuse by lobbyists, tribal chieftains and political party mandarins who can easily influence the two principals, hence the need for an accountable process.
Kibaki turned a deaf ear to his Justice Minister Mutula Kilonzo, who had also pleaded for a more accountable process of vetting of candidates by the JSC team.
Gicheru’s departure
They all argue that the appointment should have been done above board.
"Vacancies should be filled by involving the public. The gender equation should be applied when filling the vacancies," he said.
Gicheru is expected to vacate office next month, as per the new Constitution, a position he has held for more than six years.
Last month, LSK proposed five candidates to contest for the post that has since independence been filled directly by presidential appointees.
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