The Attorney General has told a court that nominations by President Kibaki to key constitutional offices were improper.
A senior state counsel, Ms Wanjiku Mbiyu, said the Judicial Service Commission was ignored when the President nominated Justice Alnashir Visram to succeed outgoing Chief Justice Evan Gicheru.
“The Attorney General’s position is and has been JSC was not involved in the appointment as required under the Constitution,” Ms Mbiyu told a three-judge bench.
The state attorney is representing the Government in a suit filed by rights organisation challenging President Kibaki’s nominations of Justice Visram as CJ, Mr Kioko Kilukumi as the Director of Public Prosecutions, Prof Githu Muigai as the Attorney General and Mr William Kirwa as the Controller of Budget.
Last week National Assembly Speaker Kenneth Marende declared the nominations unconstitutional, sparking a bitter row between President Kibaki’s and Prime Minister Raila Odinga’s respective wings of the coalition government.
Protesting Mr Marende’s ruling shortly afterwards, President Kibaki said he would await the decision of the Constitutional Court.
Lost first round
But by then, the government had already lost the first round in the High Court when Justice Daniel Musinga declared the nominations illegal after Attorney General Amos Wako failed to raise any opposition.
Mr Wako is the chief legal advisor to the government and the official respondent in any lawsuit against the State.
Mr Justice Musinga directed all the human rights organisations that appeared before him to present their arguments before three judges appointed last week by Chief Justice Gicheru for determination.
The Constitutional Court comprises Judges Kalpana Rawal, George Dulu and Luka Kimaru. It will respond to all the issues raised by the groups seeking to have the whole process of appointments quashed. The case will be heard on March 2.
The three judges have assured the parties in court that they will only be focusing on the legal aspects of the nominations and will not tolerate nor concede to any political pressure.
They were responding to concerns by the lawyer of the petitioners, who accused the CJ of rushing the case.
Lawyer Alice Wahome, representing the group of NGOs that moved to court to challenge the nominations, said the case was not mature for hearing, yet Justice Gicheru appointed the judges and placed the hearing dates.
“This court is concerned about the legal issues in the petition and not the political aspect of it,” Mr Justice Kimaru said.
The case was scheduled for hearing yesterday, but failed to start, with lawyers saying they were not prepared for the hearing.
According to Ms Wahome, the issues raised in the case are grave and sensitive and require adequate preparation.
The hearing is now likely to take longer as 14 more groups were allowed to join the case as interested parties.
Among those who will be represented in the case are Orange Democratic Movement and Federation of Women Lawyers - Kenya (Fida-K). The President’s Party of National Unity joined the case last week.
Eight NGOs that filed the case say the nominations were made in total disregard of provisions of the Constitution requiring consultation and consideration of gender equity.
The three judges have directed the Attorney General to respond to the petition before the end of the day.
The other parties have been given seven days to file their papers in court.