Kibaki insists nominations legal

Friday February 18 2011

President Kibaki addresses a news conference outside his Harambee House office February 18, 2011 over Speaker Kenneth Marende's ruling on his controversial nominations. The President insisted he acted within the law and said he will await the decision of the Constitutional Court. JOAN PERERUAN.

President Kibaki has said that his nomination of four Kenyans to top State jobs was within the law.

Addressing a news conference at his Harambee House office Friday over Speaker Kenneth Marende's ruling on the controversial nominations, President Kibaki said he will await the decision of the Constitutional Court.

The President said he acted "within my constitutional mandate" in nominating the four individuals to the four justice and budget jobs.

He said that the spirit of separation of powers among the three arms of government "on this important constitutional issue ought to have been respected".

"The interpretation of the Constitution ought to have been left to the Judiciary," President Kibaki said.

"In my actions as your President, I have at all times acted in accordance with the Constitution and the Laws of Kenya."


He said the two House Committee on Justice and Finance had found that the nominations were constitutional.

"None of the these two Parliamentary Committees returned a verdict that myself and the Prime Minister had acted unconstitutionality in relation to the nominations," he said.

"Before we can conclude the nominations that we have embarked upon, the government will wait the verdict of the Constitutional Court on the nominations. In the meantime, we shall proceed with other aspects of implementing the Constitution."

He said that his government was committed to the implementation of the new Constitution and that he will provide leadership in the process.

Already, a court has issued interim orders that the nominations were unconstitutional.

But Prime Minister Raila Odinga said the Speaker had upheld the Constitution when making his ruling.

“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 PM said.

He further 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 further urged Kenyans not to fear that the coalition government would collapse on the basis of the ruling.

“I know we will sit and resolve this issue so that country can go forward. There is no need for people to fear anything. Don not take it that the country will be split over this matter,” the PM said to cheers from the crowd.

Two weeks ago, both principals agreed to refer the matter to the House and respect its decision after their meeting failed to break the impasse.

"On the Issue of the nominations to fill State offices currently under consideration by Parliament, the two Principals agreed to respect the ongoing parliamentary process and its outcome.

"Furthermore, the two Principals assured Kenyans that they will observe the letter and spirit of the Constitution in implementation of the Constitution including the appointment to State Offices," read a statement from President Kibaki's office.

At the news conference, he was accompanied by ministers George Saitoti, Njeru Githae, Beth Mugo, Sam Ongeri, assistant minister Orwa Ojode, politician Maina Kamanda and his advisor on constitutional matters Kivutha Kibwana.

In Parliament, an ODM MP criticised the President’s decision saying the Head of State was not keen on rolling out the new Constitution.

Mr John Mbadi (Gwassi) spoke just minutes after the President delivered his message, adding that he was perhaps “a captive of the lords of impunity in his inner circle”.

“This man seems not to understand that the era of imperial presidency ended on August 27, 2010 when we promulgated the new Constitution,” he said.

“He thinks that the Constitutional Court will rule in his favour, because he controls the Judiciary. But he might be shocked!”

The nominations have been declared illegal by the High Court, the Commission for the Implementation of the Constitution, the Law Society of Kenya, the Judicial Service Commission and most recently by the Speaker of the National Assembly, Mr Kenneth Marende.

President Kibaki had extensively quoted the recommendations of the Justice and Legal Affairs Committee saying they had found the nominations legal. The committee, in its sittings, was sharply divided along party lines, with President Kibaki’s supporters on one side and the supporters of Prime Minister Raila Odinga on the other.

“How can the President base his argument on a report that is not even admissible to the House? That report was thrown out,” said Mr Mbadi.

President Kibaki nominated Mr Justice Alnashir Visram to be Chief Justice, Prof Githu Muigai (Attorney General), lawyer Kioko Kilukumi (Director of Public Prosecutions) and William Kirwa as Controller of Budget.

But Mr Odinga contested the move saying there were no consultations between him and the President as provided by the Constitution and the National Accord.

On Thursday, Speaker Marende ruled that the nominations were done in contravention of the Constitution and referred the matter to the two principals to start the process afresh. (Read: Speaker's ruling on Kibaki's nominees)

His ruling was welcomed by the ODM wing of government while their PNU counterparts reacted angrily.

Immediately after the ruling, PNU MPs convened a news conference in Parliament where they condemned the Speaker's ruling and indicated that they will contest it.

The MPs, who were led by Cabinet ministers Uhuru Kenyatta, Kiraitu Murungi and Sam Ongeri, accused Mr Marende of being a partisan player.

But in a swift rejoinder, ODM MPs Millie Odhiambo, Rachael Shebesh and Elizabeth Ongoro dismissed the threat and said they were happy with the ruling.

"MPs are disgruntled and want to play politics with the constitutional implementation process," they said.

Earlier on Friday, Vice President Kalonzo Musyoka said MPs would seek to "overturn" the ruling. (Read: Kalonzo: MPs may 'overturn' Marende ruling).

Additional reporting by Alphonce Shiundu and Mark Agutu