By LUCAS BARASA lbarassa@ke.nationmedia.comPosted Saturday, January 29 2011 at 21:00
In Summary
- Nominations were done without consultation with the office of the PM
- The Constitution envisages that the new CJ should come from outside the current crop of judges
- The Judicial Service Commission was not involved in the search
- Appointments contravene the new Constitution
The coalition government was headed for a fresh crisis on Saturday after Prime Minister Raila Odinga rejected the President’s choice of the new Chief Justice and Attorney-General.
Mr Odinga, who returned to Nairobi from a visit to Ethiopia, contradicted President Kibaki’s position that the nominations had been done “in consultation with the Prime Minister”.
The PM protested that he had not been consulted and said that he would use “constitutional means” to block the nomination of Mr Justice Alanashir Visram to the office of CJ, Prof Githu Muigai to the office of Attorney-General, Mr Kioko Kilukumi to the office of Director of Public Prosecutions, and Mr William Kirwa to the office of Director of Budget.
The names of the nominees will be forwarded to Parliament in the coming days where they will be vetted by the Committee on Justice before they are laid before the House for a vote.
Mr Odinga kept the details of plans to block the appointments to himself but aides told the Sunday Nation they were mulling over a diplomatic approach to the President, failing which the dispute could head to the courts.
“We are taking measures to ensure that we preserve, protect and defend the Constitution of Kenya as by law established and to uphold the sovereignty, dignity and integrity of the people of Kenya,” Mr Odinga said on arrival at Jomo Kenyatta International Airport.
Asked by journalists the exact measures that would be taken to block the nominations and whether they would be judicial or through Parliament, Mr Odinga said: “We will ensure the Constitution is not violated.”
The PM said he was shocked and dismayed by what he described as “purported” appointments.
Mr Odinga, who was accompanied by Cabinet ministers Mohamed Elmi, Dalmas Otieno, James Orengo and Paul Otuoma, said his office had written to the Office of the President stating that consultations on the judicial appointments be done after he and President Kibaki return from Ethiopia.
“I was, therefore, deeply shocked and dismayed when I was informed that the President had purportedly proceeded to appoint Chief Justice, the Attorney-General, the Director of Public Prosecutions and the Director of Budget, without adherence to the provisions and principles of the Constitution,” Mr Odinga said.
The dispute is the latest storm to hit the quarrelsome coalition government and appears to have been touched off by the naming of six suspects ICC chief prosecutor Luis Moreno-Ocampo blames for the 2008 post-election violence.
President Kibaki has dispatched Vice-President Kalonzo Musyoka on an international mission to tell the world that the post-election violence case does not have to go to The Hague and can be handled in Kenya. On that basis, the President is seeking a one-year deferral of the case to enable the country to get its systems up and running.
On the other hand, Mr Odinga has complained that the VP’s mission was not a Cabinet decision.
Sources told the Sunday Nation that President Kibaki, who left for the AU Summit in Ethiopia on Saturday, was keen to demonstrate tangible efforts the government has made to establish local mechanisms to try the post-election violence suspects.
The PM listed five reasons why he thought the appointments were unprocedural and unlawful, first among them being failure by President Kibaki to consult him as stipulated in the Constitution.
“As Prime Minister, I was not consulted at all. The Constitution also requires that any appointment by the President in terms of Section 29 of the Transitional and Consequential Provisions (The Sixth Schedule of the Constitution) can only be made after consultations with the Prime Minister and with the approval of the National Assembly.
“The National Accord and Reconciliation Act, which has a constitutional status on the principles of partnership of the coalition government, states that there must be real power sharing, constant consultations, mutual trust and confidence,” Mr Odinga said.
Secondly, Section 23 (1) of the Transitional and Consequential Provisions of the Constitution requires that all judges and magistrates who were in office on the effective date can only continue to serve as such only after they have been vetted for suitability on the basis of mechanisms and procedures established by Parliament.
“It is instructive that even the Chief Justice in office immediately before the effective date can only continue to serve in the Court of Appeal after undergoing the process of vetting. This is not a personal issue or a judgment of the individuals who have been allegedly nominated. The fact is that no serving judge is qualified for appointment until they have been vetted,” the PM said.
He cited Section 24 (2) of the Sixth Schedule which provides that the new Chief Justice “shall be appointed by the President, subject to the National Accord and Reconciliation Act and after consultations with the Prime Minister and with the approval of the National Assembly.”
The PM said the appointments have been made to serve the interests of a few people, including elements within upper echelons of government who have serious credibility and integrity issues and constitute the networks of impunity.
Constitutional crisis
President Kibaki’s move, he said, throws the country into a major constitutional crisis “and may be the beginning of the end in respect of the implementation of the reform agenda if not corrected and reversed”.
He said the provisions of the Constitution and the National Accord and Reconciliation Act have been secured by the new Constitution.
He said all state organs and officers including the PM and the President must adhere to principles and values set in the Constitution when making public policy decisions.
Mr Odinga named the recent extension of the tenure of National Security Intelligence Service director Michael Gichangi as among those that he was not consulted on by the President.
“I am not mad to lie that we did not consult. Consultations for judiciary jobs had not started. I only heard the announcement,” Mr Odinga said.
He named the appointment of the Committee on Implementation of the Constitution, the Judicial Service Commission and the Revenue Allocation Commission as those that he had agreed on with the President. He added that the list of the new appointees would not be taken to Parliament before consultations were done “as even Parliament must follow the law”.
Asked whether the judicial appointments were meant to make the ICC to defer Kenya’s post-election violence cases, Mr Odinga said: “I don’t want to join the league of speculators’’.
“If you want to deal with the ICC properly, you don’t go for cosmetic changes,” Mr Odinga said.
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