President Kibaki’s nominations to key justice and budget office jobs are unconstitutional, the High Court declared on Thursday.
And because of this, the High Court ruled that it will be unconstitutional for any State organ to approve the nominees.
President Kibaki on January 28 nominated Appeal judge Alnashir Visram as Chief Justice, law professor Githu Muigai as Attorney General, lawyer Kioko Kilukumi as Director of Public Prosecutions and parastatal chief William Kirwa as Controller of Budget.
Giving his ruling, Mr Justice Daniel Musinga had this to say: “I am satisfied that the nominations were in breach of Article 27(3) of the Constitution that guarantees fundamental rights and freedom of women and men to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”
Mr Justice Musinga noted that the Attorney-General conceded that the process ought to have received recommendations from the Judicial Service Commission as required by the Constitution but this did not happen.
Violation of Constitution
He also noted that the AG also conceded that there was violation of the Constitution to the extent that out of the four nominations, none was a woman despite the constitutional requirement for gender equality.
“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,” Justice Musinga ruled.
On the issue of consultation between the two principals before making the nominations, the judge held that it appears there was some consultation between the two. However he said there was no consensus.
The judge said the two leaders ought to have considered the spirit of the national accord which requires transparency among other things.
Justice Musinga’s order arose out of a case filed by eight non governmental organisations saying the nominations were made in total disregard of provisions of the Constitution requiring consultation and consideration of gender equity.
The organisations told the court that the nominations in question set a dangerous precedent and stand out as rodents eating at the very roots of the constitutionalism and the rule of law that ought to be safeguarded.
There is real danger that organs like the National Assembly may be buoyed by the President’s unconstitutional act and approve the same hence set in motion foundations for blatant disregard of the Constitution, the group had argued.
And as a result, they asked the court to move with speed as a custodian of the majesty of the constitution.
State counsel Wanjiku Mbiyu urged the court not to give any temporary orders.
Mrs Mbiyu said the material placed before court to show that the two principals did not consult is all newspaper cuttings and therefore cannot be relied on.
In such an instance, she said, what is described as evidence which can be relied on by a court of law is an affidavit from the two principals showing either there was consultations or lack of it.
And in absence of this, she said, there is no evidence to show President Kibaki failed to consult and she urged the court to disregard that argument on consultation.
On the issue of discrimination against women she said there may be gender discrimination.
Lawyer C. N. Kihara representing President Kibaki’s Party of National Unity opposed the case and urged the judge not to grant any temporary orders saying there is no crisis in the country.
The lawyer said the process is a political one and the court should leave it to politicians.
Mr Kihara urged the court to keep in mind that the country is in transition stage and therefore the appointment of CJ is at this stage a preserve of the executive.
The judge in his ruling noted that even though he would not stop parliament from doing its work, the court is under obligation to make an appropriate declaration and bring it to the attention of the National Assembly.
He said the oath of office which all judges took required to them to diligently serve the people and impartially do justice in accordance with the Constitution without fear or favour.
“In interpreting the Constitution. The letter and spirit of the constitution must be respected. The Constitution is a living instrument with a soul.”
And in the light of this oath of office, Justice Musinga said, he must uphold the twin principles of constitutionalism and the rule of law in his decision.
He went ahead and issued declaration that the process should not continue, awaiting the hearing and determination of the case.
Even as he gave his ruling, a second case was filed challenging the same nominations.
The second case lodged by more than nine youth groups pleaded that President Kibaki violated the Constitution because he discriminated against the youth.