Second court order blocks Kibaki nominees

Just a day after President Kibaki withdrew his list of nominees to constitutional offices, a Mombasa court has restrained the Attorney General from publishing their names.

It also directed that intelligence chief Michael Gichangi should remain in office.

Justice Mohammed Ibrahim suspended any action of implementing the appointments by the Judicial Service Commission and the AG and instead directed that the petition be heard before the Constitutional Court, to be constituted by the Chief Justice as a matter of national urgency.

However, the director of the National Security Intelligence Service (NSIS) Maj Gen Michael Gichangi will remain in office, since his re-appointment was in exercise of Section 6 of the President Powers, the judge ordered.

“This is a statutory appointment in the circumstances unless shown otherwise. The orders sought against him cannot be granted since he is already in office and should only be removed at all after the full hearing,” the judge noted.

He went on to observe that the court has the power, authority and jurisdiction to nullify and revoke his appointment if they succeed in their claim, which is until the full petition is heard and determined. 

While agreeing with Mr Waweru Gatonye, who was representing the NSIS director, Justice Ibrahim said that granting the order sought would also destabilise the leadership of the intelligence service, thereby threatening peace, security and stability of the country.

A human rights organisation, Muslim for Human Rights (Muhuri) and two other applicants Mr Khelef Khalifa and Mr Ndung’u Wainaina had sought for a conservatory order restraining the intelligence boss from acting as NSIS director pending the hearing and determination of the petition.

Through their lawyer Harun Ndubi, they also wanted an order which would restrain the publication of the names of Mr Justice Alnashir Visram as Chief Justice, Prof Githu Muigai as Attorney General and Mr Kioko Kulukumi as Director of Public Prosecution (DPP), which was granted by the court.

However, on Tuesday President Kibaki withdrew the list and said he will consult Prime Minister Raila Odinga on the appointment of the AG, the JSC would handle the nomination of the CJ and the nominations of the DPP and Controller of Budget were referred to the Public Service Commission.

Mr Odinga immediately welcomed the move.

While making a reference to ruling by the High Court in Nairobi on a similar petition, Justice Ibrahim said that the AG opposed all prayers by the applicants and even opposed the application without giving any explanations.

In view of the foregoing, Justice Ibrahim noted that the AG has been questionably inconsistent and could legitimately be subject to censure by the court, saying that the entire situation on such a matter touching on the Constitution and public national interest amounts to an abuse of the court process.

“The courts have frowned on the practice of inconsistent positions taken by parties in different cases in particular especially when they are public institutions or officers that are supposed to be impartial and support the Constitution and the rule of law,” he said, while referring to a decision by the Appellate Court in a Kibaki Vs Moi case.

On the issue of Maj Gen Gichangi, the judge added that the applicants went to court after he had been appointed, which was different scenario from that of CJ, AG and DPP which have not taken effect since there was no doubt that they are constitutional office holders.