Friday, February 4, 2011

Speaker declines to make ruling over nominees

Kenya parliamentary Speaker Kenneth Marende has declined to make a ruling on the legality of President Kibaki’s nomination of top officials for the country’s justice system and budget office.

He instead directed the matter to two House committees - Justice and Legal Affairs and Finance Planning and Trade - to collect evidence, deliberate on the issue and report to the House at a special sitting Thursday next week.

Here is a livetext of the proceedings as they happened:

4:40: The constitutionality of the issue is a not a matter to be determined by the House.

Speakers says committee collect evident and help the House arrive at a conclusion.

Says two letters be forwarded to the Justice committee and act on them according to their respective mandate. The committe will be expected to report to the House at a special sitting to conduct the specific business.

Speakers rules that it is not appropriate and declines to make a ruling, also on whether there was or not a consultation. Withholds comment on the veracity on the letter received from the Prime Minister.

4:31 The minimum the Speaker will do to convey this to the relevant organs of the House

Speaker commits to the responsible committee to deliberate on the constitutionality and then for the House to approve or disapprove the motion.

Important to consider Standing order presupposes a motion that Speaker can form an opinion

We are not in a point where we can favour or support the motion.

If the matter arises in the House on a constitutional issue, it is the responsibility of the Speaker to give an interpretation

4:09: Speaker says he has mandate to rule on the matter at hand.

Breaking News: HIGH COURT declares unconstitutional Kibaki nominees for justice and budget office jobs and orders that no State organ to proceed with them.

4;05 - Marende points out questions that informs his deliberation, including, whether the Speaker is competent to rule on the issues at hand, or whether should be referred to other organs; and what consultations.

4:01 Speaker currently speaking on the matter of President Kibaki's nominations. Refers to Imanyara's argument in Parliament Tuesday (see below) which sought the Speaker's direction.

3:58 - End of Question Time

Jebii Kilimo: We should not just castigate police officers. They put their lives on the line

3:38 - Gwasi MP raises issue over statement that officers are looking for thugs to kill. Minister says officers will not allow thugs to take over the country.... Speakers asks him to withdraw the statement

3:23 - Gichugu legislator Martha Karua on the question 'Could the Minister state how many people have been shot dead by police in the country since the 4th of August, 2010 giving the names and places they were shot and the circumstances?'

Minister says in 2010, 18 people shot by police, and starts naming the identities and the circumstances. Indicates the first one shot while participating in riots in Nakuru.

Says measures to curb the trend include identifying the officers, some of whom are retired on medical grounds.

Karua says she has a list of 62 people, indicating that over 70 people must have been killed, notes the specific numbers and where the shootings took place.

3:14 - On the question on the outcome of specific mineral surveys conducted in the country. Minister says preliminary explorations – deposits in Meru county. The new law to enable communities to benefit from the mining.

3:00 At this time members are debating other questions indicated on the order paper, and at the end, the Speaker is expected to make his communication.

To the Ministry of Education there are questions seeking the cause of mass failure in the 2010 Kenya Certificate of Primary Education (KCPE) examinations in Kisii and Nyamira Counties. The minister is being required to provide a list of all registered candidates in the
2010 KCPE examinations in the two counties and the breakdown of their performance.

Minister says he is aware of the shortage of fertiliser. Says ministry asking Treasury to release the money but have not yet received the money, insists there is no revolving fund.

Questions for Minister for Agriculture:

a) Is the Minister aware that food production is threatened by the
rapidly escalating prices of fertilizer?

(b) Why has the Revolving Fund for Stabilization of Fertilizer Prices that
was initiated in 2010, through which the Government released funds for purchase and subsequent sale of subsidized fertilizer for farmers,
(c) What measures is the Minister taking to arrest the above situation?

After Orders of the day are read, it is now Question Time.

2:30 House session begins with prayers.

Last week, President Kibaki nominated Justice Alnashir Visram as new Chief Justice, Prof Githu Muigai as Attorney General and Kioko Kilukumi as the Director of Public Prosecutions. The fourth position of Controller of Budget – though not part of the justice system – went to Mr William Kirwa.

Since then, there has been controversy over the nominations, with some criticizing the move as ‘unconstitutional’.

The contention is that there were no adequate consultations, and Prime Minister Raila Odinga indicated that shortly after he arrived from the AU summit in Addis Ababa. He said the announcement, made while he was in Ethiopia, ‘shocked and dismayed’ him.

Other bodies including the Constitutional Implementation Commission, the Judicial Service Commission and some civil society groups have sought to have for dialogue to avert a looming political and constitutional crisis.

On Tuesday, after a heated debate in Parliament - pitting members of Mr Odinga’s Orange Democratic party against those from President Kibaki’s Party of National Unity (PNU) - it was resolved that Speaker Marende would make a ruling over the nominations to the four key positions under the new constitution.

Here is the verbatim report of the point of order raised by Gitobu Imanyara (Central Imenti) in which he sought the Speaker's ruling on Tuesday:

Mr. Imanyara: Mr Speaker, Sir. I rise on a point of order to seek your assurance, guidance and direction on what we, hon. Members of this National Assembly should do where incidents of gross violation of the Constitution occur, instigated by either the Members of this House, the Executive or the Judiciary.

In rising on a point of order, Mr. Speaker, Sir, I am aware of Article 3 (1) of the Constitution that we recently promulgated which says: “Every person has an obligation to respect, uphold and defend this Constitution.”

Yesterday, Kenyans were treated to a spectacle that we have not seen in the history of this country where the country’s Chief Justice and the Country’s Chief Legal Advisor held a press conference and signed a statement which accused the Head of State of breach of the Constitution in the manner in which he has submitted to you the nominees for positions under the new Constitution.

Mr. Speaker, Sir, in the Statement by the Judicial Service Commission at which the hon. Chief Justice was present and signed this Statement; and at which the hon.

Attorney-General, a constitutional office holder who is the Chief Legal Advisor to the Government and whom we depend upon to let us know whether the Government is acting in accordance with the Constitution, stated as follows, and I have a copy of the statement that was signed by all of them: - “We, the members of the Judicial Service Commission express our grave concern and misgivings about the nomination for the Chief Justice that was made by the President last week. We note that the President states that he consulted the Prime Minister prior to the nomination. We have also noted the views expressed by the Prime Minister that he was not consulted prior to the nomination.

As we implement and internalize the new Constitution, we, the Judicial Service Commission, are of the view that both the Judiciary and the Kenyan people must start the new era heralded by the new Constitution on the right footing; both the letter and the spirit of the new Constitution must be adhered to in our view.

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 to put the country first that entails a withdrawal of the nominations and a fresh start. On our part, it is our view that in order to give the process of appointing judicial officers’ legitimacy, public confidence, ownership and acceptance by the people of Kenya, the Judicial Service Commission must play an integral role in the process. It is our view that Articles 171 (e) and (2) read together with Article 166 (1) and Schedule 6, Section 24, gives the Judicial Service Commission powers to play that important role. Such a process, in our view, would de-politicize and provide the much needed legitimacy and acceptance of the nominees.”

Mr. Speaker, Sir, that is a very important Statement issued by an arm of the Government - the Judiciary - which is headed by the Chief Justice. I have just said that the Chief Justice sat at a press conference and signed this Statement, a copy of which I table before the House.

(Mr. Imanyara laid the document on the Table)

Shortly thereafter, another Commission formed under the laws passed in this House and appointed only the other week upon our return also issued a Statement signed by the Chairman of that Commission, namely the Commission for the Implementation of the Constitution (CIC) expressing similar views and ending – because it is a lengthy Statement – as follows:- “In view of the above, it is the position of the CIC that the letter of the Constitution as provided for in Article 66, together with Sections 24 and 29 of the Sixth Schedule require that the appointment of the Chief Justice by the appointing authorities should be as follows.

(i) The process of appointment should commence with recommendations by the Judicial Service Commission to the President, who in turn should consult the Prime Minister after which the President forwards the name of the nominee to the National Assembly for approval before final appointment by the President.
(ii) The role of the Judicial Service Commission in the appointment of the Chief Justice should be respected and the Commission allowed to undertake the function reserved to it by the Constitution.”

Mr. Speaker, Sir, that is a lengthy statement. It is signed and I table before this House a copy of the statement.

(Mr Imanyara laid the document on the Table)
Mr. Speaker, Sir, you would have noticed that the Judicial Service Commission did point out that the Prime Minister did dissociate himself from that nomination process, which would point to a breach of the provisions of the Constitution that incorporate the National Accord that requires consultations between the Principals before appointments are made.

Indeed, I am aware that the Rt. Hon. Prime Minister has written to you at length on this issue and you have a copy of that letter, which I have tabled before the House.

What bothers me and hon. Members of this House who I have spoken to is that, contrary to the oath that all of us took, each of us, as a Member of Parliament and each of the heads of the various arms of the Government, there is a clear attempt to undermine the Constitution under the circumstances that will point to a very dangerous trend.

Mr. Speaker, Sir, should we get this wrong and go back to the old days, then there would have been no need for the long crusade for a new Constitution in this Republic.

This is if the implementation process is carried out in a way that undermines that process.

Mr. Speaker, Sir, because you have made Communications from the Chair on the need for the implementation of the Constitution in a manner provided for in the Constitution, I rise to seek your directions on how we should proceed in this regard, bearing in mind the provisions of Standing Order No. 47 (b) which forbid the bringing into this House of any Motions, laws or any Bills that are contrary to the Constitution.

Hon. Members: Yes!

Mr. Imanyara: Mr. Speaker, Sir, I do seek your direction and guidance.

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