Speaker holds back, but judge rules list illegal

The ball is now in the court of two parliamentary committees after Speaker Kenneth Marende declined to rule on the constitutionality of nominations to the justice system by the President.

The committees on Justice and Legal Affairs and that of Finance and Trade were directed to vet the credibility of the nominations and report to Parliament on Thursday.

It is after the MPs of the committees chaired by ODM MPs Ababu Namwamba (Justice) and Chris Okemo (Finance) that the Speaker will give his ruling, Mr Marende told the House.

But at the High Court, Mr Justice Daniel Musinga ruled it unconstitutional for any State organ to approve the nominees.

“In view of court’s findings regarding constitutionality of the manner in which the nominations were done, I make a declaration that it will be unconstitutional for any State organ to carry on with the process of approval and eventual appointment to the offices of CJ, DPP and AG based on President Kibaki’s nominations.”

President Kibaki last Friday nominated Appeal court judge Alnashir Visram to the position of Chief Justice, Prof Githu Muigai as Attorney General, Kioko Kilukumi as Director of Public Prosecutions and William Kirwa as Controller of Budget.

The nominations were immediately opposed by ODM, which said Mr Odinga had not been consulted as required in law. The PM confirmed talks but no agreement.

Attorney General Amos Wako conceded as much by agreeing that recommendations should have been received from the Judicial Service Commission, the judge said.

He added that the AG had further conceded that there was no woman among the nominees, therefore they lacked gender balance but that there appeared to have been consultations between President Kibaki and Prime Minister Raila Odinga.

Mr Marende’s ruling in Parliament appeared to take the MPs, majority of whom had already taken hard-line positions along party lines and affiliation, by surprise.

In his 45-minute ruling, Mr Marende insisted on the need for parliamentary committees to play their oversight roles.

He said the committees, as is the practice, would collect evidence and give findings to the House, after which MPs will decide the direction to take.

“It must be noted that questions of constitutionality and observance of the law are not matters to be determined only by the vote of either the committee or indeed of the House.

“To this end, 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,” he told the House.

The matter was raised on Tuesday by Mr Imenti Central MP Gitobu Imanyara, who sought the Speaker’s direction on the matter after President Kibaki forwarded names of the nominees to the House and Prime Minister wrote shortly after protesting that he had not been consulted as required by the law.

Mr Imanyara had argued that the process of nomination was a gross violation of the law.

On Thursday, Mr Marende said that the Legislature and the Speaker in particular had the legal basis to give a ruling on the matter that has split the government down the middle.

He told MPs that the matter was weighty and that was why he allowed members to debate it on Tuesday.

“I permitted considerable ventilation on this matter and I am glad that I did because deep and profound reflections on the nature, character, letter and spirit of our Constitution were proffered.”

In his parting shot, Mr Marende made a passionate call to leaders to be responsible and to put national interests before their own.

He recalled the pain and tribulations the country underwent after the disputed presidential elections and warned leaders not to throw the nation into such bloodshed through similar circumstances.

Severe indictment

“To my mind, 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,’’ Mr Marende said.

“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,” he told a keen House.

It would be heart-breaking to the people he said, if the process that should herald a new beginning and inspire new confidence got off to such a rough start.