Muthaura: Kibaki wants House to approve nominees

President Kibaki wants Parliament to approve the list of nominees to constitutional offices, one of his aides has told the House Committee on Justice and Legal Affairs.

“The President would like you to approve these names and push the reform agenda forward,” the Head of Civil Service Francis Muthaura told the MPs at a meeting in Nairobi’s County Hall on Wednesday.

In a fresh twist to the controversy, the President’s men revealed that the Chief of Staff in the Prime Minister’s Office, Mr Caroli Omondi, was the one who pushed the two Principals to go ahead with the controversial nominations of four constitutional office holders.

Mr Muthaura said Mr Omondi “argued convincingly” that the positions ought not be advertised because doing so will be taking away the constitutional powers of the two Principals to pick nominees during the transition period.

Mr Muthaura told the Committee that Mr Omondi’s position was supported by the President’s advisors and thus three gazette notices --that had been prepared by the Office of the President to advertise the positions of the Chief Justice, Attorney General and the Director of Public Prosecution-- were withdrawn.

Committee chairman Ababu Namwamba questioned how the opinion of one man could make the Principals readily change their earlier position.

But Mr Muthaura just shook his head as the chairman asked his question and considered the matter sorted, because after all the President and the PM agreed on the process and it’s only because they failed to agree on the nominees that the controversy arose.

He added that the agreement between the Principals and their lawyers, at a January 6 meeting, was that it was the Principals’ job to identify the nominees, present them to Parliament for approval and then for the President to appoint.

“During transition, the Chief Justice is to be identified by the President in consultation with the Prime Minister. There’s no issue of the Chief Justice being recruited through the Judicial Service Commission. That will be done after (the next elections) and that’s very clear in law,” Mr Muthaura said.

“The law does not go beyond the requirement that they consult; anything beyond that is not provided for in law. That will bring in a lot of generalities in the interpretation and that can send you in very dangerous waters.”

The MPs in the meeting countered Mr Muthaura’s explanations, especially for his statement that the consultations between the two leaders hoped for an “agreement” on the list of the nominees.

Besides, MPs questioned why the letter forwarding the four nominees to Parliament was signed by Mr Muthaura and not the President. Mr Olago Aluoch, a committee member, said the Constitution was clear that it was the President to forward the names to Parliament because of the word “shall” in the Constitution.

However, Mr Muthaura said he communicates on behalf of the President and if the House want the President himself to write to the House, then there won’t be a problem.

“This is a new Kenya now (you better have the President write to Parliament),” Mr Aluoch reminded the powerful career civil servant.

Prof Kivutha Kibwana, the President’s adviser on Constitutional matters, said the talks between the President and the PM met the “consultation” test “because the Constitution is superior to all other laws, you are first of all guided by what it says. Obviously, consultation does not mean concurrence.”

He added that the Constitution did not consider or even anticipate a situation where one party does not make itself available for the consultations, like was the case with the Prime Minister prior to the disputed nominations.

“Consultation in many cases refers to search for an opinion. You ask people, what do you think of this? What do you think of that? It involves seeking an opinion in order to improve in decision-making,” added Prof Nick Wanjohi, President Kibaki’s personal secretary.

“Many times is not a question of ‘we agree’, but rather, that ‘we understand’ how the decision was made.”

In the meeting, the MPs wondered how the Principals failed to agree yet they seemed to have readily accepted the process of picking nominees to the offices of the Chief Justice, Attorney General, Director of Public Prosecution and Controller of Budget.

Mr Muthaura said it all arose after President Kibaki wanted the names in place before he departed for Addis Ababa (Ethiopia) to attend an African Union meeting. But apparently, the PM’s team did not see it fit to rush the exercise.

The Head of Civil Service tabled a list of minutes of the decisions reached in the meetings between the two Principals, which, after a quick perusal, Mr Namwamba questioned why “the minutes are not not signed, there is no list of persons attending the meeting and the minutes don’t indicate the details of the proposals made in the meeting".

But Mr Muthaura replied that there were no minutes from that meeting, in the conventional sense, but just a record of the decisions reached for record purposes and for communicating to the public.

“Where you’re calling a meeting to execute a constitutional mandate, don’t you think we should have proper minutes, unlike the way you do in routine government operations?” posed Mr Aluoch.

Ms Millie Odhiambo (nominated,ODM) questioned why city lawyer Fred Ojiambo was disqualified, yet he qualified for the post of Attorney General under article 166. She also asked why Justice Riaga Omollo, the presiding judge of the Court of Appeal was not considered.

The President aides told her that Mr Ojiambo did not have a postgraduate qualification needed to advise the government.

“The fact that Justice Omollo’s name appeared in the original list as one of the three names floated (alongside Justice Paul Kihara and Al nashir Visram) means that he was considered,” said Prof Wanjohi.

Mr Mutava Musyimi (Gachoka, PNU) noted: “I just wonder why we did not consider a woman for the post of Chief Justice. Because if there’s a gender that is not ethnicised in the way they approach life, then it’s the ladies.”

Mr Muthaura later described the meetings between the President and the Prime Minister as “very warm meetings”.

“When they deal with a problem, they deal with it. If they can’t agree they push it forward till the next meeting,” he told the committee.

The meetings between the President and the PM were attended by Mr Muthaura, Mr Omondi, Prof Wanjohi, and in one meeting Dr Mohammed Isahakia.