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

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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

 

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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.

 

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Court says Kibaki nominees illegal

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.

 

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Groups want court to bar Kibaki nominees

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.