Commission on the Implementation of Constitution has declared President Kibaki's action of naming nominees to top judicial positions as unconstitutional.
The Commission, mandated to oversee the implementation of the new constitution, said that the process of nominating the new Chief Justice should be initiated by the Judicial Service Commission and not the President.
"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.
"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," the Commission said in a paid advertisement scheduled to appear in Tuesday's newspapers.
Further, the Commission said that new appointees for the position of Attorney General, Director of Public Prosecution and Controller of Budget require the President to consult the Prime Minister prior to appointment, subject to the National Accord and Reconciliation Act. The process of appointment should also reflect the letter and spirit of the constitution.
"Only if the above processes were followed would the nominations be constitutional," the advertisement said.