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Kibaki’s judiciary nominees spark new round of coalition clashes

Saturday January 29 2011

Photo | PPS President Kibaki’s controversial appointments to the Judiciary were announced hours before he left the country for the AU heads of state summit in Addis Ababa where he was received by senior Ethiopian officials on January 29,2011. Government Spokesman Alfred Mutua told a press conference in his Nairobi office that consultations between the President and the Prime Minister started late last year, a claim that the latter has dismissed as false.

Photo | PPS President Kibaki’s controversial appointments to the Judiciary were announced hours before he left the country for the AU heads of state summit in Addis Ababa where he was received by senior Ethiopian officials on January 29,2011. Government Spokesman Alfred Mutua told a press conference in his Nairobi office that consultations between the President and the Prime Minister started late last year, a claim that the latter has dismissed as false. 

By SUNDAY NATION TEAM [email protected]

The list of nominees for the positions of the Chief Justice, Attorney-General and the Director of Public Prosecution announced by President Kibaki on Friday has attracted outrage, praise and caution among Kenyans.

While the President’s action has received support from certain quarters mainly allied to his PNU side of the coalition, politicians allied to ODM party leader Raila Odinga condemned it.

The decision also drew fire from women lawyers and the Supreme Council of Kenya Muslims among others.

The President nominated Court of Appeal Judge Justice Alnashir Visram the next Chief Justice of Kenya to replace Chief Justice Evan Gicheru.

The President also named Prof Githu Muigai the next Attorney-General, taking over from long serving Amos Wako, while lawyer Kioko Kilukumi was nominated the new Director of Public Prosecutions.

The President also picked former Agricultural Development Corporation managing director William Kirwa as Controller of Budget.

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The Law Society of Kenya responded cautiously and said the three must rise above partisan politics and contribute for the best interests of the people.

Speaking to the Sunday Nation from Arusha, Tanzania, LSK chairman Kenneth Akide said the biggest challenge facing Justice Visram, Prof Muigai and Mr Kilukumi was to exercise independence and professionalism.Mr Akide said the Society had confidence in the three whom he described as having “good legal minds’’.

“As LSK, we have no quarrel with the choices,” said Mr Akide. “Justice Visram is a bargain in a society that is fairly tribal and whoever picked on him was perhaps trying to neutralise the tribal factor,” he said.

But LSK secretary Apollo Mboya said the council would be making its presentations on the nominees when they come up for vetting in Parliament.

“I can tell you that currently there are issues that the LSK has with the person who has been nominated for the CJ’s position regarding the pronouncement he made as a judge of the High Court. It will be articulated by the council of LSK at the time of the vetting of the nominee at the parliamentary committee stage,” Mr Mboya said.

“We are going to table reasons why we think that his judgment does not warrant him to be the candidate,” he added. Mr Mboya’s position was echoed by the Kenya section of the International Commission of Jurists (ICJ-Kenya).

“Justice Visram hates freedom of expression which he has, in the past, punished with the highest damages ever awarded in the country. He cannot lead a free people in implementing their new and libertarian Constitution, enacted in response to injustices that he has been part of,” ICJ-Kenya said in a statement.

For his part, Justice minister Mutula Kilonzo felt the appointments were long overdue.

“They’re welcome,” the minister said. “Sadly, this has been delayed for five months. I’ve called for them since promulgation.”

But Culture and National Heritage minister William ole Ntimama termed the move by the President to nominate the three to the senior Judiciary positions irregular and one that goes against the spirit of the coalition government.

“The manner in which the nominations were made is a clear indicator that impunity and lawlessness still exist among our leaders, since one part of the coalition government was not consulted,” Mr Ntimama said in Nairobi.

He also said that the President’s move was just one of the many methods that will be used to divert the attention of Kenyans from the ongoing International Criminal Court (ICC) process.

The minister further alleged that the list was a creation of the KKK alliance whose sole purpose was to further tribalism and nepotism in the country.He urged the President to withdraw the names he had put forth and let due process be followed.

Former Justice minister Martha Karua termed the appointments “unfortunate” and an act against the Constitution.

“For a position like the Chief Justice’s, the recommendation must be made by the Judicial Service Commission through a competitive process after which the names are tabled in Parliament for debate and only when a candidate is agreed upon, does the President make the appointment,” said Ms Karua, also the Narc Kenya party leader.

She also said that she was not against those on the list but rather the manner in which the appointments were done.

“This is an act of impunity within our ruling class and a preference for shortcuts while making decisions of national importance,” she said. “It is time for all Kenyans of goodwill to speak out and urge those in authority to follow due process.”

Ms Karua, too, asked the President to withdraw the list.

“But if he does not, I sincerely hope that Parliament will reject it once it gets to the floor of the House,” she said.

Ikolomani MP Boni Khalwale, however, said the decision by President Kibaki to nominate the three was a welcome move.

Dr Khalwale said Parliament would wait to hear from the Prime Minister on whether he had been consulted on the appointments before MPs can take a stand on the matter when the names are brought for debate.

Parliament, he said, was ready to scrutinise the appointments and approve them only if they reflected regional balance and were above reproach.

“I want to welcome the move because Kenyans have been waiting for long for the President to come up with names for Parliament to debate and approve,” said the Ikolomani MP in Kakamega.

The Democratic Party praised the judiciary appointments and dismissed protests by ODM. The party’s national organising secretary Jacob Haji reckons the appointments will restore public confidence in the Judiciary.

Elsewhere, MPs Olago Aluoch (Kisumu Town West), John Pesa (Migori) and John Mbadi (Gwasi) demanded that the grand coalition government be dissolved and fresh elections called.

Reacting to the news of the nominations, the two MPs claimed that the future of the current grand coalition government was bleak if the President does not consult the Premier.

Mr Olago said the move was unconstitutional and read an attempt to create a judiciary that will be friendly to the Ocampo Six.

“Clause 166 is very clear that appointment can only be done on the recommendation of the Judicial Service Commission and in consultation with the Prime Minister. There was no recommendation of the JSC and no consultation with the PM,” he said.

At the Coast, Supreme Council of Kenya Muslims (Supkem) faulted the appointments. Coast branch chairman Sheikh Ahmed Muhdhar claimed that President Kibaki had violated the Constitution in nominating Justice Visram, Prof Muigai and lawyer Kioko Kilukumi to the three crucial positions.

Sheikh Muhdhar said the President ought to have consulted Mr Odinga.

Reported by Walter Menya, Benson Amadala, Maurice Kaluoch, Galgalo Bocha, Daniel Wesangula, Geoffrey Kinuthia and Samwel Kumba