Kibaki list: JSC, CIC say action is unconstitutional

By Standard Team

Could President Kibaki have bitten off more than he can chew in last week's nominations to four key constitutional offices?

Would Kenya’s divided Parliament approve the President’s nominees on the platform of ethnic and political considerations rather than the constitutionality of the process, competence and suitability of those proposed to the offices of Chief Justice, Attorney General, Director of Public Prosecutions, and the Director of Budget? Would the President’s action backfire just as his decision to unilaterally give former anti-graft boss Justice Aaron Ringera another term? Or would the battle end up in Parliament with an unflattering ruling by Speaker Kenneth Marende that mirrors his choice of Vice President Kalonzo Musyoka as Leader of Government Business, given that the President has once again acted outside the provisions of the National Accord that holds together the Grand Coalition Government?

Independent Institutions

These are the question Kenyans were left asking even as two key independent institutions — Judicial Service Commission (JSC) and the Constitution Implementation Commission (CIC) — returned the verdict the President subverted the Law.

The statement by JSC was notably signed by occupants of the two constitutional officers to be replaced — Chief Justice Evan Gicheru and Attorney General Amos Wako.

"There is an urgent need for a rethink of the matter and to put the country first. That entails a withdrawal of the nominations and a fresh start," said the JSC in its statement read by High Court Registrar Lydia Achode who its secretary.

The wider implication of the President’s move, and Raila’s remonstrations, was discernible from the voice of Dr Kofi Annan, who brokered Kenya’s peace deal. In his usual diplomatic speak, he urged Kibaki and Raila to "adhere to the Constitution".

The CIC, which is headed by lawyer Charles Nyachae, and whose mandate includes ensuring all aspects of the new Constitution are implemented in line with the spirit with which it was written and passed in the 2010 national referendum, challenged Kibaki and Raila to "provide forward looking and selfless leadership".

President Kibaki during the promulgation of the new Constitution at Uhuru Park last year. Dr Kofi Annan, who brokered Kenya's peace deal, has urged Kibaki and Raila to "adhere to the Constitution". [PHOTO: FILE/STANDARD]

The team also warned that the "ongoing debate is detrimental to implementation of the Constitution."

The two bodies declared the President, who arrived from Addis Ababa last evening, acted in bad faith by holding inconclusive consultations with Prime Minister Raila Odinga, then going ahead to pick the nominees. This, they argued, goes against the grain of the Constitution which requires there be consultation and unanimity or agreement between the two on appointments to the offices, set up by or about to be rendered vacant by the new Constitution.

‘Kibaki is wrong’

The ‘Kibaki is wrong’ verdict came as the storm stirred by the latest row in the troubled Grand Coalition Cabinet built up, despite the President’s response to Raila, given through Internal Security Minister Prof George Saitoti and Defence Minister Yussuf Haji that adequate consultations took place and there was no constitutional crisis. Further signs there was no let-up in the new tussle came with the news that the President, through the Head of the Civil Service and Secretary to the Cabinet Mr Francis Muthaura, has already forwarded the names to the Speaker of Parliament to await vetting by the House, which resumes its sittings today. National Assembly Clerk Mr Patrick Gichohi received the communication from Muthaura. Curiously, the President’s aide sent the names to Speaker Kenneth Marende on the day the JSC, which should vet the appointment of judges, called on Kibaki to withdraw the names. Yesterday Marende said he had not received any communication from the PM informing him the list from Muthaura did not have his support.

The weight of the problem facing the country stood out in a letter Raila’s Chief of Staff, Mr Karoli Omondi, sent on his behalf, to Muthaura on January 27th, a day before the controversial nominations, informing him it was the PM’s wish that the "consultations be held sometime next week on a date convenient to the two principals." Karoli explained to Muthaura the PM was headed to Ethiopia to present his report on the Ivorian political crisis, in his capacity as the African Union-appointed mediator.

Consultative process

But as Muthaura rushed Kibaki’s list to Parliament, sources within Raila’s office revealed the PM would write to President Kibaki to formally protest his exclusion from the consultative process, contrary to the spirit and letter of the new Constitution as well as the National Accord that calmed Kenya’s post-election violence in 2008 by way of power sharing between the two principals.

It was also revealed Raila’s Orange Democratic Movement (ODM) party was planning to write to Marende spelling out its misgivings on the President’s action, and asking him to rule if the appointments were in line with the Constitution, in the same way he did when the President sidestepped the PM and unilaterally picked the Vice President as the Leader of Government Business in Parliament.

But the President’s Party of National Unity (PNU)— which is bracing for battle in Parliament over the nominations where it expects support from Rift Valley MPs who have rebelled against Raila — meets today under Kalonzo to plot against ODM. Marende explained now that he has Kibaki’s list "parliamentary procedure will follow".

When MPs reconvene today, they are expected to debate the Vetting of Judges and Magistrates Bill and Judicial Service Bill that seek to reform the Judiciary.