The Kenyan constitutional impasse...........

Rutashubanyuma · Feb 3, 2011

The Kenyan constitutional impasse

The Speaker of Kenyan House, Kenneth Marende has declined to award the prayers sought by Hon. Gitobu Imanyara fervently pleading for the four names nominated by president Kibaki to Chief Justice, Attorney General, DPP and controller of government Budget be not forwarded to the relevant committees for a hearing and recommendations to the full House.

Imanyara together with P. M Raila Odinga had accused President Kibaki of not following the constitution to the letter pertaining to those appointments, and in particular for not consulting the premier.

Raila had alleged Kibaki did not consult him although his oral surmises suggested he was but there was no consensus.

The Speaker ruled that unless the process continues he has no mandate to intervene because a hearing is yet to be conducted to determine those issues among others, and that can only happen in the relevant committees where the public will also be invited to air their concerns before the full House settle the matter once and for all.

While Marende was doing Kenyans proud, the High Court acted like a rogue defendant of Kenyan constitution when it declared the nominations were illegal and the process has to come to an end………………

In my considered opinion, the Kenyan constitution contemplated the House but not the courts will be the final arbiter in executive appointments. Hence, it was unconstitutional for the courts to intervene in the parliamentary proceedings even before those proceedings had come to an end………………………….The Kenyan High Court had acted prematurely, presumptiously, and impetuously inconsiderate of the legal ramifications it had just unleashed………akin of opening a can of worms…………

The A.G should quickly move to the Appeals Bench in order to restore the dignity of both the House and the Judiciary before they all becoming a laughing stock to the members of the general public……………………

SOURCE: KBC TV

Namtih58 · Feb 3, 2011

Rutashubanyuma said:
In my considered opinion, the Kenyan constitution contemplated the House but not the courts will be the final arbiter in executive appointments. Hence, it was unconstitutional for the courts to intervene in the parliamentary proceedings even before those proceedings had come to an end.The Kenyan High Court had acted prematurely, presumptiously, and impetuously inconsiderate of the legal ramifications it had just unleashedakin of opening a can of worms

The A.G should quickly move to the Appeals Bench in order to restore the dignity of both the House and the Judiciary before they all becoming a laughing stock to the members of the general public

SOURCE: KBC TV

The courts are the custodians of the constitution. It is within the high courts jurisdiction to make a ruling on the petition that was presented before it. Ikumbukwe that parliamentarians in Kenya have vested interest in the matter, we cannot leave such grave matters to people who almost always think of themselves first and Kenyans second.

Marende for fear of being impeached decided to take middle ground. The courts with their new found independence acted without fear.

No wonder this is coming from KBC a government controlled media house would we expect any less?

nomasana · Feb 3, 2011

The High Court has declared that President Kibaki breached the Constitution when he selected four nominees for justice and budget office jobs.

Making the ruling, Justice Daniel Musinga also ordered that no no State organ should proceed with the process which sought to name a Chief Justice, an Attorney General, a Director of Public Prosecutions, and a Controller of Budget.

President Kibaki nominated Mr Alnashir Visram as CJ, Prof Githu Muigai as Attorney General, Mr Kioko Kilukumi for DPP and William Kirwa as controller of budget.

Eight non-governmental organisations had gone to court seeking to restrain any organ of state from carrying on with the process of approval and eventual appointment.

According to the organisations, the manner in which the President made the nominations in total disregard of provisions of the constitution requiring consultation and consideration of gender equity is likely to bring disunity in the country.

Rutashubanyuma · Feb 4, 2011

Speaker holds back, but judge rules list illegal

By NJERI RUGENE nrugene@ke.nationmedia.com AND JILLO KADIDA jkadida@ke.nationmedia.comPosted Thursday, February 3 2011 at 21:00
In Summary

Mr Kenneth Marende declines to make a ruling in the House on whether President Kibaki's nominations to key offices are unconstitutional; but in the High Court a judge declares the list unlawful
Speaker tells House teams to play their oversight work and present their findings in a week

The ball is now in the court of two parliamentary committees after Speaker Kenneth Marende declined to rule on the constitutionality of nominations to the justice system by the President.

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The committees on Justice and Legal Affairs and that of Finance and Trade were directed to vet the credibility of the nominations and report to Parliament on Thursday.

It is after the MPs of the committees chaired by ODM MPs Ababu Namwamba (Justice) and Chris Okemo (Finance) that the Speaker will give his ruling, Mr Marende told the House.

But at the High Court, Mr Justice Daniel Musinga ruled it unconstitutional for any State organ to approve the nominees.

"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."

President Kibaki last Friday nominated Appeal court judge Alnashir Visram to the position of Chief Justice, Prof Githu Muigai as Attorney General, Kioko Kilukumi as Director of Public Prosecutions and William Kirwa as Controller of Budget.

The nominations were immediately opposed by ODM, which said Mr Odinga had not been consulted as required in law. The PM confirmed talks but no agreement.

Attorney General Amos Wako conceded as much by agreeing that recommendations should have been received from the Judicial Service Commission, the judge said.

He added that the AG had further conceded that there was no woman among the nominees, therefore they lacked gender balance but that there appeared to have been consultations between President Kibaki and Prime Minister Raila Odinga.

Mr Marende's ruling in Parliament appeared to take the MPs, majority of whom had already taken hard-line positions along party lines and affiliation, by surprise.

In his 45-minute ruling, Mr Marende insisted on the need for parliamentary committees to play their oversight roles.

He said the committees, as is the practice, would collect evidence and give findings to the House, after which MPs will decide the direction to take.

"It must be noted that questions of constitutionality and observance of the law are not matters to be determined only by the vote of either the committee or indeed of the House.

"To this end, without pre-empting the findings of any of the committees of the House or any action of the House, it is important that the House remains alive to the Speaker's mandate, when timeously obligated to, to give the guidance and directions sought," he told the House.

The matter was raised on Tuesday by Mr Imenti Central MP Gitobu Imanyara, who sought the Speaker's direction on the matter after President Kibaki forwarded names of the nominees to the House and Prime Minister wrote shortly after protesting that he had not been consulted as required by the law.

Mr Imanyara had argued that the process of nomination was a gross violation of the law.

On Thursday, Mr Marende said that the Legislature and the Speaker in particular had the legal basis to give a ruling on the matter that has split the government down the middle.

He told MPs that the matter was weighty and that was why he allowed members to debate it on Tuesday.

"I permitted considerable ventilation on this matter and I am glad that I did because deep and profound reflections on the nature, character, letter and spirit of our Constitution were proffered."

In his parting shot, Mr Marende made a passionate call to leaders to be responsible and to put national interests before their own.

Rutashubanyuma · Feb 4, 2011

Politics
Court says Kibaki nominees illegal

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President Kibaki. PHOTO / FILE
By JILLO KADIDAPosted Thursday, February 3 2011 at 16:10

The High Court has declared that President Kibaki breached the Constitution when he selected four nominees for justice and budget office jobs.

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Making the ruling, Justice Daniel Musinga also ordered that no no State organ should proceed with the process which sought to name a Chief Justice, an Attorney General, a Director of Public Prosecutions, and a Controller of Budget.

President Kibaki nominated Mr Alnashir Visram as CJ, Prof Githu Muigai as Attorney General, Mr Kioko Kilukumi for DPP and William Kirwa as controller of budget.

Eight non-governmental organisations had gone to court seeking to restrain any organ of state from carrying on with the process of approval and eventual appointment.

According to the organisations, the manner in which the President made the nominations in total disregard of provisions of the constitution requiring consultation and consideration of gender equity is likely to bring disunity in the country.

Rutashubanyuma · Feb 4, 2011

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Groups want court to bar Kibaki nominees

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By JILLO KADIDAPosted Wednesday, February 2 2011 at 13:27

The controversy over the judicial appointments made by President Kibaki has found it's way to the High Court.

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It's wrong, Kibaki told as Speaker gets the list

Eight non-governmental organisations are asking the high court to give an order restraining any organ of state from carrying on with the process of approval and eventual appointment to the offices of Chief Justice, Attorney-General and Director of Public Prosecution.

Reason? The organisations believe the nominations done by the President on January 28 are unconstitutional. President Kibaki nominated Mr Alnashir Visram as CJ, Prof Githu Muigai as Attorney General, Mr Kioko Kilukumi for DPP and William Kirwa as controller of budget.

According to the organisations, the manner in which the President made the nominations in total disregard of provisions of the constitution requiring consultation and consideration of gender equity is likely to bring disunity in the country.

And anything that causes disunity needs to be stopped.

The group urged the judge to rise up to the occasion stamp his authority and uphold the supreme law of the land by granting a temporary order halting the process of key appointment.

"My lord the matter before you raises question of violation of constitution. Such violation should not be allowed to stand a moment longer," said lawyer Ongoya representing the group.

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 by the constitution.

"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 of blatant disregard for constitution."

And as a result, they are asking the court to move with speed as a custodian of the majesty of the constitution.

Rutashubanyuma · Feb 18, 2011

Rutashubanyuma · Feb 18, 2011

PICTURES: Speaker Kenneth Marende

Add a comment (6 comments so far)
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Submitted by rohojuu
Posted February 17, 2011 06:59 PM
Thank God for giving Kenyans a wise speaker of the National Assembly. Country first! Due process must be followed. Hii ni Kenya mpya.
Submitted by ibruzaibra
Posted February 17, 2011 07:36 PM
I love the way Marende has ruled on the contencious nominations. I salute u mr.speaker sir!
Submitted by eokapesi
Posted February 17, 2011 07:51 PM
Mr. Speaker continue with the same spirit. You seem to have kenyans in your heart more than so called Mr. Presi who has since been drawn into succession politics.Kenya is Bigger than any planned mediocrity and it calls for sound minded leaders to get kenya from behind the moving world.Marende the sole gift of God almighty to Kenya.

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Speaker of the National Assembly Kenneth Marende on February 17, 2011 ruled that the controversial nominations of four Kenyans to top State jobs were unconstitutional and that MPs should wait for the names of nominees drawn within the confines of the constitution. Photo/FILE

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DOWNLOAD: Speaker's ruling blocks Kibaki nominees

House Speaker Kenneth Marende returned the matter to President Kibaki and Prime Minister Raila Odinga to follow the law and bring a new list to the House for vetting and approval.

This ruling is not in any way a commentary on the suitability of any of the nominees, Mr Marende said. (Read: Speaker's ruling on Kibaki's nominees)

The verdict put an abrupt end to the ambitions of Court of Appeal Judge Alnashir Visram who had been proposed for the position of Chief Justice, Prof Githu Muigai (Attorney General), Mr Kioko Kilukumi (Director of Public Prosecutions) and Mr William Kirwa (Controller of Budget).

Clearing the names is a critical part of Kenyas efforts to convince both the UN Security Council and International Criminal Court that the countrys Judiciary, prosecution and AGs offices have reformed to the point where cases involving post-election suspects can be handled at home.

The one-hour ruling, which could be interpreted to mean victory for the PM who had disputed the nominees, now opens a new round of political fights between the PNU and ODM.

Mr Marende, who seemed to stand between the two sides that have been fighting over the list, warned against any attempts to water down the firm provisions in the new Constitution under the guise that the country is in a transitional period.

He declared Parliament would not debate the list the President submitted on January 31, thus expunging the reports by the committees of Justice and Legal Affairs, and the one on Finance and Trade from House records.

This House will not proceed with any business concerning the concerns as per 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, he ruled.

He urged the President and the PM to live within the provisions of the Constitution and the National Accord, stating that adequate consultations did not take place.

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, Mr Marende said as ODM MPs cheered.

In an apparent reference to the failure by the President and the PM to reach an agreement over the list, the Speaker spoke of the difficulty he had over the ruling. I had hoped not to rule on contestations on nominations. The time has come to make difficult decisions, he said.

The Speaker said that after he directed that the row be taken to the two committees, he hoped that the President and the PM will take steps to resolve the impasse over the list. (Read: Speaker holds back, but judge rules list illegal )

The window, (after the ruling on February 3, 2011) remained open to make the nomination uncontested. This was not to be. The unsatisfactory position has grown in leaps and bounds to cause anxiety in the country. Be it as it may, the Speaker must make a ruling, the Speaker said.

He made the ruling after the two teams on Justice chaired by Budalangi MP Ababu Namwamba and on Finance chaired by Chris Okemo submitted their reports.

In the Finance teams report, the majority opinion mainly held by PNU MPs and allies of suspended minister William Ruto said the nominations for the AG and DPP were in line with the new Constitution and should proceed to the next stage of vetting.

They, however, recommended that the nominee for the CJ should be returned to the President for fresh nominations even though it met constitutional requirements. Their recommendation, they said, was driven by the importance attached to the office of the CJ.

Given the importance of the head of a newly reformed Judiciary, we recommend the re-processing of this nomination through the Judicial Service Commission, they stated.

The dissenting MPs argued that the nomination process failed to meet the criteria as set in the Constitution and recommended that the list of three nominees be taken back to the principals to re-start the exercise.

Rutashubanyuma · Feb 18, 2011

The Kenyan executive clashes with the Legislature following Kibaki declaring his administration will appeal over the Marende ruling over nominees to Chief Justice, Ag, DPP and controller of the government budget that should that ruling be investigated its constitutionality by the Kenyan constitutional court...............................

The irate Kibaki appeared on KBC tV making a case that it was unconstitutional for the Legislature to interfere with the executive decisions outside the purview of legislative voting..............................ironically Marende ruling barred the legislature from deciding on the merits of those nominations following two parliamentary committees recommended for their vetting of Ag and DPP but Chief justice and controller of the budget be started abinitio....................

Rutashubanyuma · Feb 19, 2011

Kibaki: Why I'll fight to the end

By SATURDAY NATION Team newsdesk@ke.nationmedia.comPosted Friday, February 18 2011 at 21:00
In Summary

The row over the nomination of a new CJ and other key officials went a notch higher after the President boldly rejected Marende's ruling; the PM backed the Speaker

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.

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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.

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Rutashubanyuma · Feb 19, 2011

Kibaki: Why Ill fight to the end

By SATURDAY NATION Team newsdesk@ke.nationmedia.comPosted Friday, February 18 2011 at 21:00
In Summary

The row over the nomination of a new CJ and other key officials went a notch higher after the President boldly rejected Marendes ruling; the PM backed the Speaker

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.

Related Stories

But Prime Minister Raila Odinga struck a conciliatory tone, declaring there were no winners and losers in Speaker Kenneth Marendes 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 Kibakis 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 Thursdays 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.

1 | 2 Next Page »

Rutashubanyuma · Feb 19, 2011

MPs train their guns on Speaker over his ruling

By Oliver Mathenge omathenge@nationmedia.comPosted Friday, February 18 2011 at 21:00
In Summary

Kalonzo says House will debate Marende's verdict on Kibaki's appointments and decide on action to take

MPs allied to President Kibaki are planning to censure Speaker Kenneth Marende if they fail to overturn his ruling or debate the reports on the judicial and budget office appointments.

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Vice-President Kalonzo Musyoka on Friday said that Parliament would debate the ruling by Speaker Kenneth Marende and "may even overturn it".

The VP added that it was not over in Parliament even as the President, who he termed as the "only CEO in this country", takes action over the Thursday ruling by the Speaker.

The MPs, drawn from PNU and ODM rebels, met on Thursday night and formed a six-member committee to look at their options.

Sources said that the committee would look at the possibility of overturning the ruling and seek ways to ensure that the two reports by House committees were tabled and debated in Parliament.

If they fail in the two fronts, the MPs will move to bring to the House a censure motion against Mr Marende.

The committee is made up of Mr Isaac Ruto (Chepalungu), Mr Jeremiah Kioni (Ndaragwa), Mr Mwangi Kiunjuiri (Laikipia East), Ms Amina Abdallah (Nominated), Mr Kiraitu Murungi (Imenti South) and Mr Johnstone Muthama (Kangundo).

Mr Muthama confirmed having attended the meeting and expressed his displeasure in the Speaker's ruling. He said that while he respected the ruling, there were questions that must be raised on Mr Marende's actions.

"All of us including the Speaker were waiting for the reports so that they could be debated on the floor of the House. But before the committees could even give notice of motion, the Speaker went ahead to make a ruling declaring the nominations unconstitutional and threw out the reports," said Mr Muthama.

He wondered why the Speaker had instructed the committees to look at the manner in which the nominations had been done only to throw their reports out.

"Why waste time, energy and public funds on reports which he knew very well that he will not accept?" posed Mr Muthama.

The MPs argued that ODM wanted the stalemate to continue until the end of the month and have Justice Riaga Omollo appointed as the acting Chief Justice.

Mr Musyoka said the supremacy of Parliament was critical for governance and MPs must be allowed to express themselves on such weighty matters.

"The supremacy of the National Assembly can't be negotiated and Parliament must act and it may even move a vote to overturn the Speaker's ruling," Mr Musyoka told journalists at the Jomo Kenyatta International Airport as he left for Juba, Southern Sudan.

The VP said it was unfortunate that the MPs had no chance to "ventilate" against the ruling despite it being evident that they were anxious to do so. He added that the majority of MPs felt wounded by the fact that they could not debate the Speaker's ruling.

It also emerged that the PNU side supported by MPs who have fallen out with Prime Minister Raila Odinga were planning to use Parliament to force ODM to replace the premier.

The plan is to use section 4(4b) of the National Accord and Reconciliation Act, which only requires a majority of the MPs to pass a vote of no confidence.

Rutashubanyuma · Feb 19, 2011

PHP:

It also emerged that the PNU side supported by MPs who have fallen out with Prime Minister Raila Odinga were planning to use Parliament to force ODM to replace the premier. 

The plan is to use section 4(4b) of the National Accord and Reconciliation Act, which only requires a majority of the MPs to pass a vote of no confidence.

Raila Odinga amekalia jiti kavu......hana siku nyingi kama Waziri Mkuu......................................ataondolewa na wabunge...............wa PNU plus ODM-Ruto.............William Ruto atakuwa ni PM....................................

Rutashubanyuma · Feb 19, 2011

Kibaki fights back

Updated 7 hr(s) 12 min(s) ago
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Nominations impasse: Let reason prevail

PNU members Jeremiah Kioni (left) and George Nyamweya address a press conference at the party headquarters yesterday. Th

President Kibaki addressing the media at Harambee House on Friday [Photo/PPS]

Committee denied chance to table report

Members differ over nomination's report

Many ways Sh31m can go round

By Alex Ndegwa
President Kibaki rejected Speaker Kenneth Marende's Thursday ruling and declared that in making the nominations to the four constitutional offices, "I acted within my constitutional mandate".
The President said the interpretation of the Constitution was the preserve of the Judiciary, apparently ruling out any further talks with Prime Minister Raila Odinga on a fresh list, until the constitutional court decides on the contested nominations. And although he declined to comment directly on the President's remarks, Raila, while speaking in Garsen, Coast Province, said the Speaker's ruling that the Executive does the nominations afresh should be treated as a win for Kenyans and not certain individuals.

An adamant President leads Executive arm of Government in rejecting Speaker Marende's ruling on the controversial nominations, setting the stage for potential confrontation in the House as PNU and rebel ODM MPs vow to overturn verdict.

Raila said he and President Kibaki had come a long way and they would surmount the dispute over the nominations.
"I will sit down and talk with President Kibaki over the issue and resolve it, I urge Kenyans to be calm," Raila said.
However, the Head of State's terse declaration yesterday, during a press conference on the steps of his Harambee House office, intensified the deadlock, which arose after the PM disowned Kibaki's list of nominees and set up a potential clash between the Executive and the Legislature.
"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.
All eyes are now on three High Court judges - Kalpana Rawal, Luka Kimaru and George Dulu - as they begin on Monday to hear the main petition filed by women organisations challenging the nominations for discriminating against women.
Uhuru's call
President Kibaki appeared to go back on earlier commitment he and the Premier made, in which they pledged to respect the outcome of the parliamentary process on nominations. The statement was communicated in a PPS dispatch after the two principals deadlocked following the Speaker's first ruling that gave a window for Kibaki and Raila to seize the opportunity to compromise.
Yesterday, the President cited the doctrine of separation of powers between the three arms of Government to criticise the Speaker's ruling, which blocked Parliament from considering his nominations to the offices of the Chief Justice, the Attorney-General, the Director of Public Prosecutions and the Controller of Budget.
He said reports by the two parliamentary committees, which were, however, rendered inconsequential after the Speaker ruled the Motions inadmissible, did not find fault in the process of nominations.
"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 arrived at a different position regarding the constitutional status of the nominations," he said.
PM Raila was to issue a statement reacting to the development but his aides later called the newsroom to say it had been called off.
The President's terse statement came a day after PNU-allied Cabinet ministers, including Deputy Prime Minister Uhuru Kenyatta and Mr Kiraitu Murungi, led over 30 MPs in disparaging Marende's ruling, and vowing to fight it to the bitter end.
"Are we saying that the country will not move forward until Raila says so?" asked an angry Uhuru.
Eldoret North MP William Ruto added that they would try to overturn Marende's ruling in Parliament next Tuesday by seeking interpretation of Article 161 of the new Constitution, which he alleged Marende had breached by ‘allegedly, overturning the peoples' sovereign will.
"It's obvious the Speaker has chosen to speak to another audience other than Parliament," claimed Ruto.
Crux of ruling
The crux of the Speaker's ruling was that the ‘consultations' between the President and PM as envisaged in the National Accord must result in a ‘compromise', and was therefore unconstitutional since the PM had contested it.
Yesterday, the Head of State did not make any reference to the bit on consultations and instead quoted findings in the report by the Justice and Legal Affairs committee, which reviewed the nomination of the CJ, AG and DPP, that he said did not find fault in the nominations:
"That the process of nomination of the Chief Justice was constitutional and in accordance with Section 24(2) and Section 29 of the Sixth Schedule…" said the President.
"That the process of nomination for the offices of the Attorney-General was constitutional… That the process of nomination for the office of the Director of Public Prosecutions was constitutional…"
He cited the report of the Finance, Planning and Trade committee, observing: "The unanimous view of the committee is that there were actions by both His Excellency the President and the Right Honorable the Prime Minister to comply with the Constitution of Kenya in the process of nomination of a person for the position of Controller of Budget."
"The principle of separation of powers between the three arms of 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," said the President.
Women groups under the G-10 movement have filed a constitutional application at the High Court challenging President Kibaki's decision to nominate Justice Alnashir Visram to the office of the Chief Justice, Prof Githu Muigai (AG), Mr Kioko Kilukumi (DPP) and Mr William Kirwa as Controller of the Budget.
The organisations argued that the Constitution was not followed and that the decision discriminated against women.
Justice Daniel Musinga ruled that the process followed in the appointment of the four was unconstitutional and ordered that no state officer or State organ should proceed with the nominations until full determination of the case. The Commission for the Implementation of the Constitution and the JSC have all said the process of nominating the nominees did not reflect the letter and spirit of the Constitution.
Yesterday the President said: "In my actions as your President, I have at all times acted in accordance with the Constitution and the Laws of Kenya. I understand that given our past, fidelity to the rule of law is of utmost importance in the running of our national affairs."
Kibaki's assurance
He added: "I also understand that there are those who urge that it is not enough to simply follow the provisions of the Constitution.
"However our primary duty is to ensure we are guided by the Constitution and ordinary law as enacted so as to ensure the smooth and predictable running of our country."
The President assured Kenyans that the Government is committed to the implementation of the new Constitution and sought to allay fears the process could run into turbulence.
"Just as I led you into the realisation of a new Constitution, I am determined to lead you into the new phase of implementing the Constitution. This phase holds great promise in our life as a nation and individuals," he added.
Cabinet Ministers George Saitoti, Beth Mugo, Njeru Githae, Sam Ongeri, Assistant Minister Orwa Ojodeh, Internal Security PS Francis Kimemia, the President's Private Secretary Nick Wanjohi, his adviser on Constitutional Affairs Kivutha Kibwana and politician Maina Kamanda were present at the President's briefing.
Read the President's full statement here.
†

Rutashubanyuma · Feb 19, 2011

Kibaki fights back

Updated 7 hr(s) 12 min(s) ago
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President Kibaki rejected Speaker Kenneth Marendes Thursday ruling and declared that in making the nominations to the four constitutional offices, "I acted within my constitutional mandate".
The President said the interpretation of the Constitution was the preserve of the Judiciary, apparently ruling out any further talks with Prime Minister Raila Odinga on a fresh list, until the constitutional court decides on the contested nominations. And although he declined to comment directly on the Presidents remarks, Raila, while speaking in Garsen, Coast Province, said the Speakers ruling that the Executive does the nominations afresh should be treated as a win for Kenyans and not certain individuals.

An adamant President leads Executive arm of Government in rejecting Speaker Marendes ruling on the controversial nominations, setting the stage for potential confrontation in the House as PNU and rebel ODM MPs vow to overturn verdict.

Raila said he and President Kibaki had come a long way and they would surmount the dispute over the nominations.
"I will sit down and talk with President Kibaki over the issue and resolve it, I urge Kenyans to be calm," Raila said.
However, the Head of States terse declaration yesterday, during a press conference on the steps of his Harambee House office, intensified the deadlock, which arose after the PM disowned Kibakis list of nominees and set up a potential clash between the Executive and the Legislature.
"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.
All eyes are now on three High Court judges Kalpana Rawal, Luka Kimaru and George Dulu as they begin on Monday to hear the main petition filed by women organisations challenging the nominations for discriminating against women.
Uhurus call
President Kibaki appeared to go back on earlier commitment he and the Premier made, in which they pledged to respect the outcome of the parliamentary process on nominations. The statement was communicated in a PPS dispatch after the two principals deadlocked following the Speakers first ruling that gave a window for Kibaki and Raila to seize the opportunity to compromise.
Yesterday, the President cited the doctrine of separation of powers between the three arms of Government to criticise the Speakers ruling, which blocked Parliament from considering his nominations to the offices of the Chief Justice, the Attorney-General, the Director of Public Prosecutions and the Controller of Budget.
He said reports by the two parliamentary committees, which were, however, rendered inconsequential after the Speaker ruled the Motions inadmissible, did not find fault in the process of nominations.
"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 arrived at a different position regarding the constitutional status of the nominations," he said.
PM Raila was to issue a statement reacting to the development but his aides later called the newsroom to say it had been called off.
The Presidents terse statement came a day after PNU-allied Cabinet ministers, including Deputy Prime Minister Uhuru Kenyatta and Mr Kiraitu Murungi, led over 30 MPs in disparaging Marendes ruling, and vowing to fight it to the bitter end.
"Are we saying that the country will not move forward until Raila says so?" asked an angry Uhuru.
Eldoret North MP William Ruto added that they would try to overturn Marendes ruling in Parliament next Tuesday by seeking interpretation of Article 161 of the new Constitution, which he alleged Marende had breached by allegedly, overturning the peoples sovereign will.
"Its obvious the Speaker has chosen to speak to another audience other than Parliament," claimed Ruto.
Crux of ruling
The crux of the Speakers ruling was that the consultations between the President and PM as envisaged in the National Accord must result in a compromise, and was therefore unconstitutional since the PM had contested it.
Yesterday, the Head of State did not make any reference to the bit on consultations and instead quoted findings in the report by the Justice and Legal Affairs committee, which reviewed the nomination of the CJ, AG and DPP, that he said did not find fault in the nominations:
"That the process of nomination of the Chief Justice was constitutional and in accordance with Section 24(2) and Section 29 of the Sixth Schedule" said the President.
"That the process of nomination for the offices of the Attorney-General was constitutional That the process of nomination for the office of the Director of Public Prosecutions was constitutional"
He cited the report of the Finance, Planning and Trade committee, observing: "The unanimous view of the committee is that there were actions by both His Excellency the President and the Right Honorable the Prime Minister to comply with the Constitution of Kenya in the process of nomination of a person for the position of Controller of Budget."
"The principle of separation of powers between the three arms of 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," said the President.
Women groups under the G-10 movement have filed a constitutional application at the High Court challenging President Kibakis decision to nominate Justice Alnashir Visram to the office of the Chief Justice, Prof Githu Muigai (AG), Mr Kioko Kilukumi (DPP) and Mr William Kirwa as Controller of the Budget.
The organisations argued that the Constitution was not followed and that the decision discriminated against women.
Justice Daniel Musinga ruled that the process followed in the appointment of the four was unconstitutional and ordered that no state officer or State organ should proceed with the nominations until full determination of the case. The Commission for the Implementation of the Constitution and the JSC have all said the process of nominating the nominees did not reflect the letter and spirit of the Constitution.
Yesterday the President said: "In my actions as your President, I have at all times acted in accordance with the Constitution and the Laws of Kenya. I understand that given our past, fidelity to the rule of law is of utmost importance in the running of our national affairs."
Kibakis assurance
He added: "I also understand that there are those who urge that it is not enough to simply follow the provisions of the Constitution.
"However our primary duty is to ensure we are guided by the Constitution and ordinary law as enacted so as to ensure the smooth and predictable running of our country."
The President assured Kenyans that the Government is committed to the implementation of the new Constitution and sought to allay fears the process could run into turbulence.
"Just as I led you into the realisation of a new Constitution, I am determined to lead you into the new phase of implementing the Constitution. This phase holds great promise in our life as a nation and individuals," he added.
Cabinet Ministers George Saitoti, Beth Mugo, Njeru Githae, Sam Ongeri, Assistant Minister Orwa Ojodeh, Internal Security PS Francis Kimemia, the Presidents Private Secretary Nick Wanjohi, his adviser on Constitutional Affairs Kivutha Kibwana and politician Maina Kamanda were present at the Presidents briefing.
Read the President's full statement here.

Rutashubanyuma · Feb 19, 2011

Nominations impasse: Let reason prevail

Updated 7 hr(s) 29 min(s) ago
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The Standard Comment
The country is yet again caught up in a situation where political temperatures are building up as politicians from across the divide sharpen their tools for next political battle.
Because of their hardline positions on the row over President's Kibaki's nominations of four individuals to key constitutional offices, the reaction of the coalition partners Party of National Unity and the Orange Democratic Movement on Speaker Kenneth Marende's ruling was not entirely unexpected. Whereas ODM politicians praised it as fair, those from the President's PNU party were livid and adamant that they would challenge it next week.
It is unfortunate that the filling of the key offices soon after the passing of a new Constitution

should be reduced to a contest between two political factions and in complete disregard of the aspirations of the people whose quest for constitutional reform has span decades.
The circus surrounding the controversial nomination of the four - Alnashir Visram for Chief Justice, Prof Githu Muigai (Attorney-General), Mr Kioko Kilukumi (Director of Public Prosecutions) and Mr William Kirwa (Controller of Budget) - has been a clear pointer that most of our politicians are too obsessed with their selfish interests that they are blinded to the greater national goals and interests.
It is for this reason that we appeal for reason and sobriety to prevail in dealing with potentially polarizing matters so as to find ways of achieving consensus in resolving the impasse and moving the country forward.
First and foremost, it must be clear that the challenge at hand is not about who will win or who will lose as there must be only one winner - the nation of Kenya

and the people's interests.
The issue must never be about the supremacy of political parties

or political leaders and their allies. The issue should not be centred on succession politics.
It must also not be about who can shout the loudest or who can demonstrate unbridled emotion.
It would also be morally wrong for politicians to reduce constitutional implementation to a simple contest of mobilisation of numbers for political expediency either in Parliament or at rallies.
The sycophancy being exhibited by politicians so far in this debate is unhealthy and unhelpful in getting the two principals to navigate around the impasse.
It is important to disabuse those with the notion that the issue at hand is about the person of the Speaker of the National Assembly Kenneth Marende or the individuals whom President Kibaki nominated to the four constitutional offices. It is not about personalities and those who think so are missing the point by a wide margin.
In seeking to fill these positions, all players should not be driven by the desire to control the holders of these offices.
In the current impasse, what must remain our focus as a people and a Government - notwithstanding our inherent personal opinions and ambitions - is the common good. There is urgent need for deliberate efforts aimed at building trust and confidence in our institutional pillars.
There is also need for commitment to respect the spirit and letter of our Constitution by ensuring that any actions on implementation must not only be consistent with the our supreme laws but also be seen to reflect the aspirations of the people as envisaged in the quest for constitutional reform.
It would be important that all critical national institutions have the right people with the right skills, expertise and suitability that can be relied upon as custodians of these offices, hence they must be filled through a process consistent with the provisions of the Constitution. The debate must be about building bridges for national healing, harmony and mutual trust, all aimed at ensuring stability and national cohesion.
It must be about acknowledging our unique circumstances as a Government and a country and seeking ways and means of allowing compromises in the pursuit of public interest.
Leaders should not forget that the current structure of Government is not the most ideal but we must remain cognisant of the fact that it was a marriage of necessity out of a then deepening national crisis.
Our country is coming from a past where key constitutional offices like that of Chief Justice, Attorney-General, electoral commissioners and others were beholden to the Executive and the ruling party. The fact that the President could unilaterally appoint people to these positions was identified as an inherent weakness that could only be cured by introducing checks and balances in the Constitution.
This is why we have consistently held the position that if the appointment of people to fill in these key positions is left to the two principals to agree on as some have argued, the national quest for strong institutions would have taken a beating. It would be unfortunate for Kenyans to let the political class to nip in the bud the country's aspirations.
History has bestowed on the Members of the Tenth Parliament the onerous but noble responsibility of getting the new Constitution up and running. They must live up to the task by staying sober and burning the midnight can oil to come up with the requisite legislation to ground it. If they continue with the political grandstanding and brinkmanship, they risk going down in history as the Parliament that missed an opportunity to book their place in the Hall of Fame.
On the other hand, Marende's ruling gave the principals a second chance to reflect and give reason a chance when he ruled that the nominations were unconstitutional. However, yesterday's assertion by Kibaki that he acted within the law now leaves the matter squarely in the realm of the constitutional court to determine.
The latest position taken by the President that he acted within the law is significant in the sense that all three arms appreciate the need for independence. It is therefore imperative that every arm of Government must carry out its mandate without meddling from any quarter.
Parliament must continue to play its role of making laws, the Executive must implement what is envisaged in the law while the Judiciary should interpret the law without fear or favour.
We are confident that the three judges will make their ruling without being influenced by any vested interests.
And as the country awaits the ruling by the constitutional court, we urge the two principals to act resolutely in lowering the political temperatures so as not to present a situation that opportunistic political actors intent on hurting their political opponents take advantage of to breed hatred, mistrust and disharmony.
We urge Kibaki and Raila to have the moral courage to lead their charges towards the higher ground of reason.
It would be unfortunate if the two principals and their lieutenants retreated to their corners to scheme on how to harden their positions for a final victory for that victory, if it is not for the people, will be hollow.

The Kenyan constitutional impasse...........

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