The controversy over President Kibaki’s nominations to key justice, law and order offices took a step closer to a battle in Parliament as key institutions waded in with appeals to reason.
The President on Monday afternoon transmitted his contentious list of nominees for Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget to House speaker Kenneth Marende; and a few hours later Prime Minister Raila Odinga wrote to the Speaker asking him to reject the list he says was drawn unlawfully.
As all this was happening, former United Nations secretary-general Kofi Annan, who mediated the Kenya post-election conflict, the Judicial Service Commission and the Commission on Implementation of the Constitution, issued calls for dialogue to avert a looming political and constitutional crisis.
The Judicial Service Commission — including outgoing CJ Evan Gicheru and Attorney-General Amos Wako whose jobs are to be taken by the new appointments — spoke just ahead of a confrontation expected when Parliament comes from recess today with the stand-off on the radar.
President Kibaki moved speedily on Monday to present Parliament with his list of Appeal Judge Alnashir Visram to become the new Chief justice, and lawyers Githu Muigai for Attorney General and Kioko Kilukumi for Director of Public Prosecutions. He has also nominated Mr William Kirwa as Budget Controller.
The names were transmitted to Parliament by Public Service head Francis Muthaura at a time Mr Odinga was meeting with his allies to craft a counter asking the Speaker to reject the list.
The point of contention is whether the President made the list of nominations without consulting the Prime Minister.
On Monday the Judicial Service Commission declared that the list was unprocedural and asked for withdrawal of the nominations to provide for fresh consultations between the two coalition principals.
“In light of the divergent views coming from the principals, we are of the view that the principals need to reconsider their respective positions. There is an urgent need for a rethink of the matter and put the country first. That entails a withdrawal of the nominations and a fresh start,” the Commission said in a statement read by High Court registrar Lydia Achode.
The statement said the President was required by law to consult the PM, and also involve the Commission.
It asked that both the letter and the spirit of the new Constitution be respected. Those who were present at the meeting at the High Court and signed the statement were Justice Gicheru, Mr Wako, Appeal Judge Riaga Omollo, High Court judge Isaac Lenaola, Magistrate Emily Ominde, lawyers Ahmednasir Abdullahi and Florence Mwangangi, Prof Christine Mango and Mr Titus Gateere.
Resolve the stalemate
Mr Annan also urged President Kibaki and Prime Minister Odinga to urgently meet and resolve the stalemate.
Expressing concern over the political heat generated by the stand-off, he said: “In line with the spirit of the Constitution, the two Principals should work together through a transparent mechanism of consultations, as required by the Constitution. I therefore urge the Principals to make every effort to solve the current impasse, and give this important beginning of true judicial reform, a solid foundation.”
The Commission for the Implementation, chaired by Mr Charles Nyachae, took a similar view, saying: “Good stewardship is critical to the success of the implementation of the Constitution. Discordant messages from the leadership, whether Executive or Parliament, may polarise Kenyans and prejudice the fruitful implementation of the Constitution.”
The Commission pointed out constitutional clauses requiring the President to consult the Prime Minister before publicly announcing nominees.
But meanwhile sleeves were being rolled up for a battle in Parliament.
On Monday evening, Mr Odinga was locked in a meeting with his inner circle crafting a letter asking the National Assembly Speaker not to accept the list on the basis that it was unconstitutional.
On the other side, MPs allied to President Kibaki were planning a meeting for this morning to discuss a strategy of pushing through the names.
Energy minister Kiraitu Murungi and acting Joint Coalition Whip Johnstone Muthama said they will be briefed on the consultations between the President and the PM and the agree on the steps to take.
If the Speaker is satisfied by the manner in which the nominations were conducted, he will forward them to the Committee on Justice and Legal Affairs and the House Committee Oversight Committee on Implementation of the Constitution.
The two committees, chaired by MPs Ababu Namwamba and Mohamed Abdikadir, will interview each nominee and prepare a report which they will present to the House as a Motion to adopt the names.
If adopted, they will be forwarded to the President for appointment. If they are rejected, they will be returned to the President for a fresh list.
However, should the Speaker reject the list, it could be stillborn even before going to the committee’s or being tabled for debate.