The row over nominations to four key state jobs was headed to the courts on Friday with President Kibaki saying he would await the verdict of the Constitutional Court on the matter.
But Prime Minister Raila Odinga struck a conciliatory tone, declaring there were no winners and losers in Speaker Kenneth Marende’s ruling the nominations unconstitutional.
President Kibaki, speaking on the stairs of his Harambee House office — the venue of his signing the National Accord with Mr Odinga ending the post-election violence, said he had acted within the law in nominating the four.
They are Mr Justice Alnashir Visram for Chief Justice, Prof Githu Muigai (Attorney General), Mr Kioko Kilukumi (Director of Public Prosecutions) and Mr William Kirwa (Controller of Budget).
State House later confirmed the government would not file a new case but will wait for the ruling on the Constitutional case challenging the nominations by the civil society. Chief Justice Chief Justice Evans Gicheru had appointed a three-judge bench to hear the matter from Monday.
The bench comprises Lady Justice Kalpana Rawal, Mr Justice George Dulu and Mr Justice Luka Kimaru.
Bid to reverse ruling
As they spoke, leaders from President Kibaki’s PNU were preparing for another fight in Parliament, with Vice President Kalonzo Musyoka announcing they would try to reverse the ruling when the House resumes on Tuesday afternoon.
Others threatened to censure Mr Marende if he tried to stop fresh debate on the reports presented by the Legal Affairs and Finance committees.
On a day of high drama following the Thursday ruling, President Kibaki faulted the Speaker for failing to respect the principle of separation of powers. It requires the Executive, Judiciary and Legislature to check each other but allow every arm to undertake its mandate. He suggested that Mr Marende had usurped the role of the courts by interpreting the Constitution.
Mr Odinga struck a conciliatory pitch over the ruling stating that it should not be viewed as a win for any individual or group.
“The Speaker made that ruling in line with the Constitution and in that (ruling) there is no winner or loser. The winner is Kenya. Nobody should brag that I won and they lost. Kenya won,” the Prime Minister said. He said he will sit with President Kibaki and work out a new list.
“President Kibaki will say this is what I want and I will also tell him what I want and then we will agree,” he said.
Addressing a rally in Garsen town at the close of the first day of his tour of Coast Province, the PM said the coalition would not collapse on the basis of the ruling.
“I know we will sit and resolve this issue so that the country can go forward. There is no need for people to fear anything. Do not take it that the country will be split over this matter,” the PM said to cheers from the crowd.
In Nairobi, President Kibaki insisted that he had acted within the Constitution and duly consulted Prime Minister Raila Odinga before releasing the names.
“In duly nominating persons to be considered by the National Assembly for appointment to the positions of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget, I acted within my constitutional mandate,” he said in a five-minute speech responding to Thursday’s ruling by the Speaker declaring the nominations unconstitutional.
“This House will not proceed with any business concerning the list that was received from the President. The reports of the two Committees will also not make part of the records of this House,” ruled Mr Marende.
The speaker said the ruling was based on the National Accord and the new Constitution which required the President and the PM to consult over the nominations and declared there were none.
“Consultations are not made if the House receives the list on which there is open disagreement between the President and the Prime Minister. As such, it is unconstitutional and the unconstitutionality cannot be cured by this House,” he said.
Signs of trouble started showing last evening after a team of PNU leaders, including deputy PM Uhuru Kenyatta and Energy minister Kiraitu Murungi, quickly convened a press conference in Parliament to record their displeasure moments after Mr Marende’s ruling.
And they pointed a finger at the PM, with Mr Kenyatta questioning the role of Mr Odinga in the stalemate.
In a statement that was signed by his adviser Mr Salim Lone, the PM had described the ruling as historic and one that had laid the foundation for all future nominations of constitutional officers.
“His historic ruling provided the vital climax for the spate of rulings by other institutions which had also characterised the nominations as having failed in following the constitutionally-mandated process. Every relevant institution which had the authority to pronounce on this matter has now ruled the nomination process must be a transparent and joint exercise involving the President and the Prime Minister to meet the constitutional standard,” he said.
Separation of powers
The President said the ruling would not stall the implementation of the new Constitution.
“Before we can conclude the nominations that we have embarked upon, the government will await the verdict of the Constitutional Court on the nominations. In the meantime, we shall proceed with other aspects of implementing the Constitution,” he said flanked by Cabinet ministers George Saitoti, Sam Ongeri, Beth Mugo, Njeru Githae, Assistant minister Orwa Ojode, coalition adviser Kivutha Kibwana and former MP Maina Kamanda.
He said the Speaker had acted outside his mandate when he chose to interpret the Constitution - powers that were vested in the Judiciary- when he ruled that the nominations were unconstitutional and should be returned to the principals.
“The principle of separation of powers between the three arms of the government on this important constitutional issue ought to have been respected. Therefore the interpretation of the Constitution ought to have been left to the Judiciary,” he said.
President Kibaki also reminded the public that the House committees on Justice and Legal Affairs and the other one on Finance and Trade had stated clearly that the President and the PM acted within the Constitution and consulted before the list was announced.
“None of these two Parliamentary committees returned a verdict that myself and the Prime Minister had acted unconstitutionally in relation to the nominations. Yesterday (Thursday) the Speaker of the National Assembly of Kenya arrived at a different position regarding the constitutional status of the nominations,” he said.
The bold step by President Kibaki followed an evening meeting by PNU leaders and ODM MPs allied to suspended minister William Ruto at Parliament Buildings on Thursday to seek ways of overturning the ruling.
It was understood that after the meeting, Mr Kenyatta, Mr Ruto and Mr Murungi proceeded to State House to confer with the President over the matter.
It is said a committee of six members has been formed to seek grounds of overturning the ruling on Tuesday.
On Friday, MP Jamleck Kamau, who attended the Parliament meeting, said: “With due respect to the Speaker who is my friend, it appears he was hostage to somebody. Also, the ruling was made after hours and these are issues we shall seek to raise on Tuesday.
Reported by Bernard Namunane, Njeri Rugene and Mark Agutu