Race against time to appoint new AG, budget boss

President Kibaki, Prime Minister Raila Odinga, and Parliament now have less than 20 days to initiate the interview, approval and appointment of individuals to key constitutional offices such as Attorney-General, Auditor-General and Controller of Budget.

The Constitution says the three offices must be filled by August 27. The same applies to the appointment of the electoral commission.

Besides, Parliament faces the monumental task of having to pass 19 Bills within the next 20 days.

Senior Counsel Paul Muite warns that unless Parliament extends the period, appointments made outside the deadline would be considered unconstitutional.

“The Constitution requires fair competition, transparency and people participation in making of the appointments. This means that candidates must be given an opportunity to apply and the public must be allowed time to scrutinise the applicants,” said Mr Muite.

The Treasury has already raised the alarm over delayed appointment of Controller of Budget. Article 206(4) of the Constitution says that money shall not be withdrawn from the Consolidated Fund unless approved by the Controller of Budget.

Treasury Permanent Secretary Joseph Kinyua last week told the Business Daily that the government risks a financial shutdown if the Controller of Budget is not appointed by August 26.

Mr Kinyua says any vacuum in the office of the Controller of Budget could shut down a key artery through which money moves inside government, bringing operations to a standstill.

The Office of the President should have declared the post vacant immediately after July 5 the effective date for the Independent Offices (Appointment) Act.

President Kibaki advertised the post through a Kenya Gazette notice and newspaper advertisements on July 25, nearly 13 days after the seven days provided for in law. The recruitment would be done by the Public Service Commission.

But even then, given the elaborate nature of the recruitment process which involves public interviews, vetting and approval by Parliament, it is highly unlikely that the deadline would be met.

Mr Charles Nyachae of the Constitutional Implementation Commission yesterday warned that the two principals were exposing the country to “unnecessary delay and anxiety”.

The CIC boss says the appointment of Controller of Budget could be challenged by a provision in the relevant law which he described as “fundamentally defective and unconstitutional”.

Section 4 (1) (e) of the Independent Offices Act says that a person shall be qualified for appointment as the Auditor-General or the Controller of Budget if such a person is a member in good standing of a professional body for accountants recognised by law.

But Nyachae says the requirement is discriminatory against other persons with divergent qualifications, who may apply for appointment as Controller of Budget.

Mr Nyachae said the clause may be subject of a court case if not amended.

President Kibaki and Mr Odinga are also supposed to replace AG Amos Wako whose term ends on August 27.

“The implementation of the Constitution would be in jeopardy because the AG is an integral part of the process,” said Mr Nyachae.

To beat the deadline, the Constitutional Implementation Oversight Committee says the House can sit extra hours. This would amount to passing a Bill a day.

Committee chairman Abdikadir Mohammed said last Tuesday it normally takes two weeks to pass a Bill, meaning that the bid to pass the 19 pieces of law within the stipulated time would be a tricky affair.

There was some sort of progress last week with the Political Parties Bill sailing through the Second Reading. But the number of recommended amendments by MPs could necessitate lengthier debate when handled by the whole House when it sits as a committee.

There have been signs that the next three Bills on Parliament’s agenda could have to be set aside or merged into one.

Justice minister Mutula Kilonzo has published three separate Bills to create the State human rights watchdog, the public ombudsman and the institution that would look out for gender issues.

But MPs Dr Boni Khalwale and Dr Eseli Simiyu have indicated to the Speaker that they intend to argue that it would be wrong to create the three commissions separately as it would be in breach of the Constitution.

According to CIOC, Attorney General Amos Wako and the line ministries are holding onto seven key Bills.

Three of these have to do with the police, whose reform is considered crucial if Kenyans are to have confidence in the force.

There is also the Bill to create the institutions that would replace the Kenya Anti-Corruption Commission as well as the other to formalise the creation of the Commission on Revenue Allocation.

Other Bills that are still stuck with the Executive arm of government are the one to set out the ways through which international treaties are ratified locally and another to govern labour relations.

The CIC is holding on to perhaps the most crucial Bill, that which would set out the manner in which future elections are conducted, which it is expected to forward to the AG by August 13.

Others are the Kenya Citizenship and Immigration Bill and the Foreign Nationals Management Service Bill.

The Public Financial Management Bill, which is developed by Treasury to provide for the manner in which funds would be devolved to counties and managed, could require additional time as it has become the subject of a spat between the Finance ministry and the Task Force on Devolved Government.

The CIC is yet to receive the Bill that will set out the manner in which the committee to advise the president on exercising his power to pardon or set aside punishment for convicted persons.

The other two Bills whose fate is unknown are The Environment and Land Court Bill and that on the System of Courts.