Lawmakers to decide fate of appointees

The member for Imenti Central sought the guidance and direction of the Chair on what members of the National Assembly should do where gross violation of the Constitution is instigated by members of this House, the Executive or the Judiciary.

Mr Imanyara also tabled a statement attributed to the Judicial Service Commission, among other things “expressing grave concern and misgivings about the nomination of the Chief Justice made by the President” and calling for a withdrawal of the nominations and a fresh start.

In promising to give this ruling, I had no doubt in my mind that the Speaker has jurisdiction to rule on this matter. It is settled law in the Commonwealth and beyond that every independent legislature is the sole judge as to how it shall conduct its own affairs.

I now move to address myself to the issues raised. Standing Order No 47(3), which is the relevant provision, presupposes the existence of a motion or a proposed motion in respect of which the Speaker can form an opinion that it is contrary to the Constitution. In the present case, clearly, we are not at the point where there is either a motion or a proposed motion

The Speaker received a letter from the Office of His Excellency, the President, on January 31, 2011, averring that he was forwarding the names of nominees in accordance with the Constitution for processing by the House.

At the point at which the Honourable Imanyara sought the guidance of the Chair, the letter had neither been tabled before the House nor been received by a committee of the House.

Subsequent to the receipt of the letter from the Office of the President, the Speaker did also receive on February 1, 2011, a letter from the Rt Hon Prime Minister making certain representations as to the validity and constitutionality of the earlier correspondence received.

Here is an abridged version of the Speaker's ruling on Thursday:

I have not been able to find any precedents of this House in which the Speaker intercepted correspondence addressed to the House and unilaterally made a determination as to its legality or validity, and returned it to the nominating authority.

I, therefore, rule that as at where we are it is not appropriate, and I accordingly decline to make a determination as to whether or not the nominations transmitted to my office by the Office of His Excellency, the President, were or were not constitutionally arrived nor whether there was or was not consultation within the meaning of the Constitution

I further direct that the two letters be forwarded to the departmental committees on Justice and Legal Affairs, and Finance, Planning and Trade. Given the urgency of the matter and the constitutional deadlines, I direct that the committees shall table their reports in the House on or before Thursday, 10th February 2011.

Without pre-empting the findings of any of the committees of the House or any action of the House, it is important that the House remains alive to the Speaker’s mandate, when timeously obligated to, to give the guidance and directions sought by Mr Imanyara.
Nomination process

Needless to say the window remains open, and it is to be hoped that developments may occur that make this important nomination process uncontested on the basis either of constitutionality or otherwise and thereby render such guidance and directions unnecessary.

Honourable members, permit me to make a few concluding observations on this matter.

I wish to echo the observations of Mr Abdikadir Mohamed, member for Mandera Central, who called for a culture of constitutionalism without which culture the Constitution becomes a mere paper.

I want to plead with all of us, the leadership and the people of this country that we all imbibe from the fountains of constitutionalism so that it becomes part of our life and our adherence to the Constitution ceases to be laboured, legalistic and minimalist.

Honourable members, painful as the memories may be, I think that it bears reminding that three years ago, almost to the day, this country was at war with itself in circumstances not so dissimilar.

We were on the brink of the precipice because a dispute relating to an election was not referred to the Judiciary because of a lack of faith in the Judiciary.

It is this very Judiciary whose head is now sought to be appointed by a process entrenched by the new Constitution.

It is nothing short of heart-breaking to the people of this country that this process, that should herald a new beginning and inspire new confidence and legitimacy in this crucial organ of State, should get off to such a rough start.

Few countries have had the opportunity of a second chance as we have. Events around the world in recent days are testimony to how situations that may have been easily avoided or acted upon while there was opportunity can rapidly deteriorate and become unmanageable.

It will be a pity and a severe indictment of our collective leadership if in time to come, history shall record of our country in general and of our leadership in particular that we learnt nothing from history.