Kibaki’s shocking KKK appointments

President Mwai Kibaki’s nominations of four highly qualified Kenyan personalities for the positions of the Chief Justice, the Attorney General, the Director of Public Prosecution and Controller of Budget are extremely controversial. He has made them without consulting the Prime Minister as it is required by the new Constitution.

No one can claim that the nomination of Alnashir Visram for the post of the country’s next Chief Justice was a mistake because the appellate Judge is not only respected among his peers but he also happens to be highly qualified. The President can also not be accused of selecting a misfit for the position of the Attorney General since Professor Githu Muigai is an extremely respected lawyer both in legal and academic circles.

In terms of qualifications and experience the President made the right choice when he nominated Kioko Kilukumi for the position of the Director of Public Prosecutions because the nominee has very impressive credentials. No one can quarrel with the President’s choice of William Kirwa as the country’s Controller of Budget because Kirwa is also a highly qualified person.

Good as Kibaki’s choices are, however, they fall short of following the constitutional requirements which demand that he consults with the Prime Minister before he makes such appointments. As far as the appointment of the Chief Justice is concerned he has not only to consult with the Prime Minister but he has also got to involve the Judicial Service Commission. According to Article 166 (1) of the new Constitution the President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly.

When the country was wondering whether the Justice Alnashir Visram was recommended to the President by the Judicial Service Commission or whether he still had to be vetted by the Commission before taking over the top job after his clearance by Parliament, the JSC dropped a bombshell by rejecting Kibaki’s nominations. That rejection may make it extremely difficult for Speaker Kenneth Marende to allow the debate on Kibaki’s nominations to be tabled in Parliament before it is absolutely clear that the two principals see eye to eye on that matter.

The move by the JSC is particularly harmful to the President because the current Chief Justice, Evan Gicheru, chaired the meeting that nullified the nominations. At the meeting was the current Attorney General, Amos Wako. This makes the rejection of the President’s nominations even more credible. No sooner did JSC reject Kibaki’s nomination than the Chairman of Parliament’s Justice and Legal Affairs Committee, Ababu Namwamba, vowed never to table the nominations in Parliament for MPs to approve or disapprove unless the constitutional procedure was strictly followed by the President.

To make matters worse the Committee on Implementation of the Constitution (CIC) took a similar firm stand against the President, making the nominations illegal. If Kibaki decides to go to court to demand his nominations to be recognized by the law, the chances are that his demands would be rejected. Not even his own Attorney General supports him on this matter.

If, in an unlikely event, the Speaker allows the vetting of the nominees by the MPs to go ahead despite the controversy surrounding the whole exercise, Parliament is likely to approve the nominations since the KKK in National Assembly are now the majority in the House. As Parliament examines President’s nominees, eyebrows will inevitably be considerably raised by the sheer coincidence of the selected personalities’ ethnic origin.

Ether coincidentally or deliberately Kibaki nominated Muigai, a Kikuyu, Kilukumi, a Kamba and Kirwa, a Kalenjin for the top Constitutional positions. Whether the respected nominated personalities sympathize with, or have any respect for, the KKK leadership Kenyans are likely to perceive the nominations as Kibaki’s deliberate maneuvering tactic to get the KKK support in Parliament for his nomination. Kibaki is certain to get that support from the majority of Parliamentarians because of his selection’s ethnic background rather than for the fact that they are highly qualified people.

If Marende allows the nomination debate to take place the KKK’s power in Parliament will be put to test with a likelihood of bloc voting to prove the tribal group is a power to reckon with. Kibaki’s selection is sure to go through. If that happens, Muigai and Kirwa may have no choice as judicial officers but to step down as their nominations have been rejected by the JSC. As for Alnashir Visram whose appointment as the country’s next Chief Justice depends on the recommendation of the JSC, he has no option but to reject Kibaki’s offer. This means, whether Kibaki likes it or not, he will have to consult Raila Odinga once more on the appointment of the Chief Justice.

Without the new Chief Justice in office there can be no hope of ever deferring the Kenyan case now pending in The Hague. It is a shame that the country can be bogged down on semantics of consultation. KKK claims the mere mentioning of the subject of nominations of top Constitutional positions by the President to the Prime Minister amounts to consulting him. This is regardless of the PM’s acceptance or rejection of the President’s choices which may even be made in a casual manner.

As the Prime Minister argues with the stubborn KKK over the legal meaning of the term “consultation” the country knows that both Raila and Kibaki cannot be right. One of them must be wrong. Whereas the now powerful KKK in Parliament supports the President’s interpretation, the law and the people of Kenya support the Prime Minister.

On the issue of new appointments the new Constitution is very clear. It says in Section 29 (2) of Transitional and Consequential Provisions of the Sixth Schedule that the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.

If there is any law that puts the whole argument about the meaning of the word “consultation” as it is used in the new Constitution to rest, that law is the National Accord and Reconciliation Act of 2008, which unambiguously says that the coalition must be a partnership with commitment on both sides to govern together and push through the reform agenda for the benefit of all Kenya. Yet there is absolutely nothing that threatens the reform agenda, and indeed also threatens the implementation of the new Constitution, as the KKK.

According to Prime Minister Raila Odinga and Justice Minister Mutula Kilonzo KKK’s main objective is to work against the new Constitution by making sure it will never be implemented in its present form. The two are just confirming the suspicion of many pundits who predicted that the opponents of the new Constitution would try to use Parliament to frustrate its implementation efforts.

Among the most authoritative sources of that prediction was the Kenya National Dialogue and Reconciliation (KNDR) Review Report of October last year which warned that anti-reformers could sabotage the implementation process. The report said the anti reformers had regrouped and formed political and bureaucratic alliances to frustrate the reform process. It said in the run up to the referendum, the anti-reformers had buttressed the numbers of the undecided (colloquially referred to as ‘water melons’ to denote people who were green for Yes, and red for No).

Because of the passion with which such groups protect self-interests, said the report ,it is possible that they will use the bureaucracy and their political influence to develop legislation of a low standard or ensure that proposed legislation protects the status quo. The KNDR then called for vigilance because the anti-reform forces including the ‘water melons’ could take over the implementation of the Constitution. If they do, KNDR warned, the old order will prevail, and the country will revert from a reform mode to ‘business as usual’.