Speaker of the National Assembly
Parliament Buildings
NAIROBI
Dear Mr. Speaker,
On January 28th, 2011, while attending the 259th Meeting of the Peace and Security Council of the African Union held in Addis Ababa, Ethiopia, I learnt from the media that H.E. Mwai Kibaki, President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, had issued a Press Release (a copy of which is attached hereto) announcing the nomination of the following persons to the positions against their names:
Hon. Justice Alnashir Ramazanadi Magan Visram – Chief Justice
Prof. Githu Muigai – Attorney General
Mr. Kioko Kilukumi – Director of Public Prosecutions
Mr. William Kirwa – Controller of Budget
The nominations, according to the said Press Release, were purportedly made “after consultation with the RT Hon Prime Minister of the Republic of Kenya Raila Odinga and in accordance with the Constitution”.
I regret to hereby confirm that I was neither consulted on these nominees nor were the nominations made jointly by the President and myself.
Indeed, on January 27th, 2011, my Chief of Staff did write to the Permanent Secretary, Secretary to the Cabinet and Head of the Public Service informing the latter that I would be travelling to Ethiopia in the morning of January 28th, 2011 and as such “the consultations between H.E. Mwai Kibaki, C.G.H., M.P., President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, and the Prime Minister on the appointments of the Chief Justice, the Attorney General, the Director of Public Prosecutions and the Controller of Budget should be held sometime next week on a date convenient to both Principals”. A copy of this letter is attached herewith.
Position of the Chief Justice
Article 262 of the Constitution of Kenya provides that “the transitional and consequential provisions set out in the Sixth Schedule shall take effect on the effective date”.
Section 24 of the Sixth Schedule to the Constitution of Kenya entitled “Transitional and Consequential Provisions” provides as follows:
(1) The Chief Justice in office immediately before the effective date shall, within six months after the effective date, vacate office and may choose either –
(a) to retire from the judiciary; or
(b) subject to the process of vetting under section 23, to continue to serve on the Court of Appeal.
(2) A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.
(3) Subsection (2) also applies if there are further vacancies in the office of Chief Justice before the first general elections under this Constitution.
Section 24(2) therefore (i) makes the appointment of the new Chief Justice subject to the National Accord and Reconciliation Act as an integral part of the Constitution and (ii) establishes a three stage process for the nomination, vetting and appointment of any Chief Justice before the first General Elections under the New Constitution. The Constitutional stages in this respect are as follows:
Stage 1: The Nomination Process: The Nomination Process is regulated by the National Accord and Reconciliation Act, as entrenched in, and forming an integral part of the Constitution, and other relevant provisions of the Constitution on qualifications.
The identification and nomination of a candidate for the position of Chief Justice is to be done jointly by the President and the Prime Minister by way of consultation under the National Accord and Reconciliation Act.
The Agreement on the Principles of Partnership of the Coalition Government (known as the National Accord in common parlance) commits the President and the Prime Minister “as partners in a coalition government, ……….to work together in good faith as true partners, through constant consultation and willingness to compromise.” The President and the Prime Minister are “to work together in the spirit of partnership” and “to build mutual trust and confidence”.
The nomination of a candidate for the new Chief Justice is to be made jointly by the President and the Prime Minister following consultation between them.
Neither Principal may make a unilateral nomination of a candidate for the position of a new Chief Justice as the Constitution does not grant such power or confer such authority to any one of them.
Indeed, Article 2(2) of the Constitution provides that:
“No person may claim or exercise State authority except as authorized under this Constitution”.
Article 3(1) of the Constitution provides that:
“Every person has an obligation to respect, uphold and defend this Constitution”.
Stage 2: Approval by the National Assembly: The National Assembly shall consider, vet, approve or reject a candidate for the position of the new Chief Justice as nominated jointly by the President and the Prime Minister on the basis of consultations between them.
But the National Assembly shall not consider, vet, approve or reject any such candidate where the nomination is not made jointly by the President and the Prime Minister. A candidate unilaterally nominated by the President without consultation with the Prime Minister shall not be a candidate validly nominated under the Constitution. The National Assembly shall not therefore consider, vet, approve or reject such candidate.
State 3: Appointment by the President: Upon the approval by the National Assembly of a candidate nominated jointly by the President and the Prime Minister, the President shall formally appoint such candidate to the position of Chief Justice.
[i]In the event that the candidate nominated to the position of Chief Justice is serving as a judge or magistrate at the time of such nomination, then the candidate must be subjected to “Stage 4: “Vetting under Section 23 of the Sixth Schedule to the Constitution to determine his/her suitability to continue to serve in the judiciary”. As a matter of constitutional provision, even if the retiring Chief Justice chooses to continue to serve in the Court of Appeal, he will only be eligible to assume that position once he has been vetted and found suitable to continue to serve in the judiciary. [/i]
Under Section 24(1)(b) of the Sixth Schedule to the Constitution, it is not automatic that the retiring Chief Justice may immediately, upon retirement but without vetting, assume a position in the Court of Appeal.
Similarly, a serving judge may only be nominated as a candidate for the position of Chief Justice after being vetted. Until and unless such vetting determines the suitability of a sitting judge to continue serving in the judiciary, a serving judge is not eligible for nomination to the position of Chief Justice under Sections 23 and 24 of the Sixth Schedule to the Constitution.
These two sections eliminate the possibility of the current Chief Justice continuing as Chief Justice or joining the Supreme Court. With such high standard, it therefore follows in the circumstances that no other sitting judge, whether vetted or not, may be appointed as Chief Justice or to the Supreme Court. The intention of the Constitution is to establish new order in the highest echelons of the Judiciary.
Section 29(2) of the Sixth Schedule to the Constitution provides as follows:
“Unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly”.
Article 259(11) of the Constitution provides as follows:
“If a function or power conferred on a person under this Constitution is exercisable by the person only on the advice or recommendation, with the approval or consent of, or on consultation with, another person, the function may be performed or the power exercised only on that advice, recommendation, with that approval or consent, or after that consultation, except to the extent that this Constitution provides otherwise”.
All new appointments under the New Constitution between the effective date and the next General Elections are therefore subject to:
(1) joint nomination by the President and the Prime Minister based on consultation between them under the National Accord and Reconciliation Act;
(2) approval by the National Assembly; and
(3) national values and principles of fair competition, equal opportunity to men and women, personal integrity, transparency, merit, etc as enshrined in the Constitution.
In view of the foregoing, it is therefore imperative that the National Assembly does not proceed to consider, vet, approve or reject Hon. Justice Alnashir Ramazanadi Magan Visram as a nominee for the position of the new Chief Justice.
The National Assembly should await a nominee jointly made by the President and the Prime Minister following consultation between them and in compliance with our national values and principles.
Position of the Attorney General
Section 31(7) of the Sixth Schedule to the Constitution provides as follows:
“Despite subsection (1), the Attorney-General and the Auditor-General shall continue in office for a period of no more than twelve months after the effective date and the subsequent appointments to those offices shall be made under this Constitution”.
Section 29(2) of the Sixth Schedule aforementioned equally applies to the nomination, vetting and appointment of the new Attorney General.
Article 156(2) of the Constitution, as read together with Section 29(2) of the Sixth Schedule, provides as follows:
“The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President”.
Consequently, any nomination of a candidate to the position of Attorney General must be made jointly by the President and the Prime Minister after consultation between them in the First Stage. The Second Stage would be the vetting and approval by the National Assembly of such nominee. The Third Stage would be the appointment of such candidate by the President after approval by the National Assembly.
In view of the foregoing, it is therefore imperative that the National Assembly does not proceed to consider, vet, approve or reject Prof. Githu Muigai as a nominee for the position of the new Attorney General. The National Assembly should await a nominee jointly made by the President and the Prime Minister following consultation between them and in compliance with our national values and principles.
Position of Director of Public Prosecutions
Section 31(5) of the Sixth Schedule to the Constitution, provides that:
“The functions of the Director of Public Prosecutions shall be performed by the Attorney-General until a Director of Public Prosecutions is appointed under this Constitution”.
Section 29(2) of the Sixth Schedule aforementioned equally applies to the nomination, vetting and appointment of the new Director of Public Prosecutions.
Article 157(2) of the Constitution, as read together with Section 29(2) of the Sixth Schedule, provides as follows:
“The Director of Public Prosecutions shall be nominated by the President and, with the approval of the National Assembly, appointed by the President”.
Consequently, any nomination of a candidate to the position of Director of Public Prosecutions must be made jointly by the President and the Prime Minister after consultation between them in the First Stage. The Second Stage would be the vetting and approval by the National Assembly of such nominee. The Third Stage would be the appointment of such candidate by the President after approval by the National Assembly.
In view of the foregoing, it is therefore imperative that the National Assembly does not proceed to consider, vet, approve or reject Mr. Kioko Kilukumi as a nominee for the position of the new Director of Public Prosecutions. The National Assembly should await a nominee jointly made by the President and the Prime Minister following consultation between them and in compliance with our national values and principles.
Position of Controller of Budget
Section 31(6) of the Sixth Schedule provides that:
“The functions of the Controller of Budget shall be performed by the Auditor-General until a Controller of Budget is appointed under this Constitution”.
Section 29(2) of the Sixth Schedule aforementioned equally applies to the nomination, vetting and appointment of the new Controller of Budget.
Article 228(1) of the Constitution, as read together with Section 29(2) of the Sixth Schedule, provides as follows:
“There shall be a Controller of Budget who shall be nominated by the President and, with the approval of the National Assembly, appointed by the President”.
Consequently, any nomination of a candidate to the position of Controller of Budget must be made jointly by the President and the Prime Minister after consultation between them in the First Stage. The Second Stage would be the vetting and approval by the National Assembly of such nominee. The Third Stage would be the appointment of such candidate by the President after approval by the National Assembly.
In view of the foregoing, it is therefore imperative that the National Assembly does not proceed to consider, vet, approve or reject Mr. William Kirwa as a nominee for the position of the new Controller of Budget. The National Assembly should await a nominee jointly made by the President and the Prime Minister following consultation between them and in compliance with our national values and principles.
Other Relevant Constitutional Provisions
Article 10 of the Constitution establishes our national values and principles of governance. Such values and principles of governance include transparency and accountability.
Article 73(2)(a) and (b) of the Constitution establish, as guiding principles of leadership and integrity, selection to public office on the basis of personal integrity, competence and suitability, objectivity and impartiality in decision making, and ensuring that decisions are not influenced by nepotism, favouritism and other improper motives.
Article 232(1)(g) of the Constitution establish, as the values and principles of public service, fair competition and merit as the basis of appointments and promotions.
Article 232(1)(i) of the Constitution establish, as the values and principles of public service, affording adequate and equal opportunities to appointment of men and women.
I respectfully urge the National Assembly not to receive, consider, vet, approve or reject Hon. Justice Alnashir Ramazanadi Magan Visram as nominee for the position of Chief Justice, Prof. Githu Muigai as nominee for the position of Attorney General, Mr. Kioko Kilukumi as nominee for the position of Director of Public Prosecutions and Mr. William Kirwa as nominee for the position of Controller of Budget on the following grounds:
(1) These nominations were made without consultation with the Prime Minister as required under Sections 24(2) and 29(2) of the Sixth Schedule to the Constitution, as read together with Article 259(11) of the Constitution;
(2) These nominations were not made jointly by the President and the Prime Minister as required under the National Accord and Reconciliation Act; and
(3) These nominations violate the national values and principles established under Articles 10, 73 and 232 of the Constitution of Kenya, particularly those requiring equal opportunity for women and regional balance.
It is my intention to consult with the President on this matter with a view to asking the Judicial Service Commission to proceed under Article 166 of the Constitution to advertise, interview and recommend to the President and the Prime Minister suitable candidates for consideration for nomination to the position of Chief Justice.
The Executive, I will further propose to the President, should adopt competitive and merit based recruitment process for nominating candidates jointly by the President and the Prime Minister to the positions of Attorney General, Director of Public Prosecutions, Controller of Budget and Auditor General in compliance with our national values and principles as enshrined in the Constitution.
Yours
Rt. Hon. Raila A. Odinga, EGH, MP
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