Kibaki’s withdrawal betrays KKK

Kibaki’s withdrawal of the four names he had nominated for top constitutional offices can be viewed in at least four different ways. First it could be a futile attempt to save face after he inadvertently angered many local and international personalities and legal institutions; secondly it could be a genuine attempt to correct a terrible mistake following a horrible advice; thirdly it could be a tactful measure to buy more time to perfect plans to empower the President to unilaterally nominate candidates for important constitutional positions without the needed consultation with the Prime Minister. Fourthly the names could have been withdrawn after a clever plan to dupe the Prime Minister to accept the names of well known stooges of PNU, who would have helped to stage-manage local trials of the Ocampo Six, failed to materialize.

Of all the above possible reasons for Kibaki’s withdrawal of his nominations it is the last one which hits the KKK hardest. Their scheme to get a team of yes-men in important judicial positions before establishing a local tribunal to ostensibly try the Ocampo Six appear to have miserably flopped. By and large Kibaki’s withdrawal of the four names seems to betray the KKK alliance.

If Kibaki withdrew the names to genuinely correct a mistake he made following bad advice given to him then a major reshuffle should be expected soon among the President’s men. All those who misled the President will probably be shown the door in a quiet reshuffle that the public will be told nothing about.
That, however, is not likely to happen if the President made his withdrawal in the Dunkirk style.

If Kibaki made the about turn act simply to save face then he has stepped on very sensitive toes of very close friends who wanted to use him to achieve their lifelong ambition to both succeed him at State House and get away with the crime of mass murders they committed after the 2007 bloody elections. They will consider Kibaki’s withdrawal of judicial names as an act of betrayal for which they will probably never forgive him.

But the chances are that the withdrawal of the said names was part of a very well planned alternative route to follow when the first option failed. Needless to say the first option was to get a team of yes-men in important judicial positions before establishing a local tribunal to ostensibly try the Ocampo Six. Since that plan has aborted miserably then plan B must have been to tactfully withdraw the nominations.

The nominations of Appeal Judge Alnashir Visram as the next Chief Justice; Professor Githu Muigai as the next Attorney General; Kioko Kilukumi as the next Director of Public Prosecutions and William Kirwa as the candidate for country’s first Controller of Budget was probably a very well calculated exercise to test the waters and see whether or not Kibaki would get away with the unilateral recommendations.

It so happens that the Prime Minister was alert to the scheme and did not fall into the trap. With the hindsight of the debates and confrontations that surrounded the nominations there can be no doubt that Raila was indeed casually consulted before the final announcements were made when he was out of the country. The final list of the nominees had names of some people he had never heard of before. If he had kept quiet and accepted Kibaki’s nominations the trend would have continued. More appointments would have been made behind his back.

The new Constitution establishes ten commissions and two important independent offices. The commissions are the Kenya National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission; the Parliamentary Service Commission; the Judicial Service Commission; the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; the Teachers Service Commission; and the National Police Service Commission. The independent offices are those of the Auditor-General; and the Controller of Budget.

That list contains a number of important jobs that still needs to be filled by the President after consulting the Prime Minister. If his experiment worked Kibaki would have filled all the important commissions and offices by casually consulting the Prime Minister. It is strange, for example, that he wants the offices of the Controller of Budget and that of the Director of Public Prosecutions to be filled through advertisements when that of the Attorney General, according to him, should be filled by consultations with the Prime Minister. The President is so annoyed with Amos Wako that he wants the AG out of office as soon as possible. The tough stand taken by the PM to have all jobs advertised has the backing of the people who now believe in transparency and accountability.

In more that one way Mwai Kibaki’s change of mind betrays the wishes of the KKK to have a local tribunal established as soon as possible to avoid going to The Hague. Though extremely bitter because of the President’s about turn act the KKK know the law is against them. Deep inside their hearts they are bitterly opposed to the new Constitution which is destroying their despotic powers faster than they imagined. It must now be extremely shocking to discover that the unilateral use of Executive powers as manipulated by the likes of Muthaura to implement unpopular policies is a thing of the past.

Now the only way they can stage a coup against the raising political star of the Prime Minister is through the use of their parliamentary numerical superiority through attempts to dominate in the important Parliamentary Select Committees. Their attempt to get rid of Ababu Namwamba as the Chairman of the Justice and Legal Affairs Committee quickly backfired when the ODM wrote to Speaker Marende seeking to replace Isaac Ruto and Sophia Abdi from the same committee. Because of the important roles the select committees in Parliament will be playing in interviewing nominees to important state positions, membership to these committees will be very crucial. Already there are signs of bitter party confrontations about the membership to these committees.

From the point of view of KKK’s growing influence in Parliament based of the large bloc they control, they can still do a lot of damage in rejecting people they don’t want in public offices. Technically, however, the ODM is officially the majority party in Parliament and it could still make sure that those who sit in the most important committees are only the loyal members of the party.

From now on a lot of arguments between political parties will be based on not only what is in the new Constitution but also what is in the Standing Orders of the National Assembly. Right now Standing Order number 159 which deals with the nomination of members of select committees will be constantly quoted in the current debate between ODM and PNU/KKK.

That Standing Order says unless otherwise provided by any written law or these Standing Orders, the House Business Committee shall, in consultation with parliamentary parties, nominate, for approval by the House, Members who shall serve on any select committee. Which means political parties will play a very important role in determining who will serve in these select committees.

All the same the political parties will also have to follow certain criteria in nominating the members to the select committees. According to Standing Order number 160 the nominations must reflect quite a number of things including the ethnic diversity. The Standing Order says in nominating Members to serve on any select committee, the House Business Committee shall ensure that the membership of each committee reflects the relative majorities of the seats held by each of the parliamentary parties in the National Assembly and Kenya’s ethnic, geographical, cultural, political, social and economic diversity; and shall give consideration to the need for gender balance.

Because the KKK lost face when Kibaki withdrew his nominations they now seem to have changed their tactics and taken the war against the Prime Minister to the select committees. The selection of membership to the select committees will from now on be based on party loyalty. The KKK will want to dominate the committees by joining hands with the rebel ODM members. As a party, the ODM itself will probably only select known loyal members to serve in the committees.

The struggle to dominate parliamentary committees means the war between ODM and PNU/KKK is far from over. Very soon the country will be taken through yet another drama of brinkmanship and grandstanding which will be done both in Parliament and in public political meetings. The scenario is not likely to change until the next general elections.

Marende spoils KKK plan

Speaker Kenneth Marende’s decision to reject President Kibaki’s four nominations to top constitutional positions has hit the KKK alliance where it hurts most. Their plan to set up a local tribunal to try the Ocampo Six locally and avoid The Hague has been completely obliterated. And they are now likely to turn all their anger over their wrecked scheme towards Marende.

The KKK’s wish to mobilize Parliament to accept Kibaki’s nomination fast was based on the hope that a local tribunal, formulated under the leadership of Justice Alnashir Visram as the Chief Justice and Kioko Kilukumi as the Director of Public Prosecutions, would be a mere puppet of the Executive. All the top KKK leaders were at one time loyal Nyayo disciples with very little respect for the independence of the Judiciary. All of them had top Cabinet posts when instructions from State House had to be followed by almost everyone on the Bench.

With those nostalgic beliefs in mind, the alliance was sure that the acceptance of Kibaki’s nominations would lead to a quick establishment of a kangaroo local court to try the Ocampo Six. A quick establishment of such a tribunal would silence both Luis Moreno-Ocampo and Western leaders, particularly President Barrack Obama, who is keen on seeing justice being done to hundred of thousands suffering PEV refugees in various IDP camps.

KKK’s bitter fight to have the nominations accepted was to make sure, if and when a local tribunal to try the Ocampo Six was established, it would not be managed by radical minded judicial officials short listed by the JSC. Judicial officials recommended by the JSC would not be easily manipulated by the Executive. Now Marende has wrecked the entire plan to have the local tribunal managed by people with proven records of friendship towards the KKK and for this he may never be forgiven.

Marende’s reasons for his tough action are sound and logical. Implementation of the new Constitution cannot be done by breaking it. The manner in which Kibaki nominated Justice Alnashir Visram for the position of the Chief Justice was unconstitutional. So was the way in which he nominated Prof. Githu Muigai to be the next Attorney General and Kioko Kilukumi to be the Director of Public Prosecutions. William Kirwa’s nomination to be the first Controller of Budget was faced with yet another controversy of a different kind.

Though a Kalenjin, William Kirwa did not have the support of the KKK because at one time he challenged William Ruto’s leadership by contesting the Eldoret North parliamentary seat against the Rift Valley tribal chief. Now they claim he is not qualified to be the Controller of Budget. ODM did not care much for Kirwa’s nomination so the party did not defend him when he was viciously attacked by the KKK MPs. That being the case Kirwa had to be shown the door long before Marende’s final ruling. Even if Marende had accepted the list Kirwa would never have had the top job Kibaki wanted to give him. The power of KKK’s numerical superiority in Parliament had already crushed him.

The KKK gang could constitute the majority in Parliament, but that strength of numbers in the Legislature should not be allowed to be used as an instrument to bend or break the supreme law. To the KKK parliamentary mob Marende has become a bitter enemy; but to the people of Kenya he has become the most respected political hero since Kibaki was first elected the President of Kenya under the euphoric banner of the rainbow alliance. The trouble in future will probably be that the KKK parliamentary squad may decide to use other sinister methods to get at the Speaker.

Realizing that the people of Kenya, the truth and the law are all on his side, Marende has nurtured an admirable courage and resilience that Kenyans have now learnt to depend on at any time of constitutional crisis. Like all Kenyans the Speaker knows that whatever happens to him, as a result of creepy skullduggery, he will eventually be triumphant. His position as the Speaker of the National Assembly will always be guaranteed by his own bravery, knowledge of the law and the ability to interpret it with the strength of Samson and the Wisdom of Solomon.

Now that the nominations problem is with the two principals, the country has learnt one useful lesson: We disobey the new Constitution at our own peril. Probably no one has learnt that lesson more than President Mwai Kibaki who now obviously knows that following the advice of sycophants with axes to grind can embarrassingly end up to be a self inflicted injury.

While repeating the exercise of filling the constitutional positions the principals would do well to seek the advice of both the Judicial Service Commission and the Constitution Implementation Commission. The two respected institutions have made their stand on the issue of nominations abundantly clear for all to see.

Besides that they would do themselves a great favour of simply perusing the new Constitution’s various Articles beginning with Articles 166(1) and 156 (2). The first one says 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. The second one says the Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.

Other parts of the new Constitution which will be at the centre of the new process to nominate the Directors of the Public Prosecution and the Controller of Budget will be Articles 157(2) and 228(1). The first one says the Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President. The second one says there shall be a Controller of Budget who shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.

If these were the only parts of the Constitution the Principals had to examine, the problem of nominations to constitutional offices would have been as good as solved. The major dilemma of the nominations is based on what the new Constitution says in its Sixth Schedule on transitional and consequential provisions whose Section 24(1) says the Chief Justice in office immediately before the effective date shall, within six months after the effective date, vacate office and may choose either to retire from the judiciary; or , subject to the process of vetting under Section 23, to continue to serve on the Court of Appeal. This means Gicheru must go with a given time yet his successor is not available as of now.

Section 24(2) says a new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly. This is the part of the new Constitution which made it extremely difficult for Marende to accept Kibaki’s nomination of Justice Alnashir Visram as the Chief Justice.

Without mincing words Marende said: “I find and rule that the constitutional requirements of section 24 (2) and 29 (2) of the Sixth Schedule to the Constitution requiring consultation subject to the National Accord and Reconciliation Act are not met if the National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between His Excellency, the President and the Prime Minister.”

According to the Speaker, Kibaki’s nominations were unconstitutional and the unconstitutionality could not be cured by any act of the House or of its committees. With those few words Marende delivered a knockout blow to the KKK plan to use their numerical superiority to endorse the Kibaki nominations through a motion which they were sure would have gone through.

In a no nonsense language Marende said: “No motion on such a nomination…. is admissible and I therefore hereby so order.” If that was no clear to the KKK member sitting in the House and pensively listening to Marende, he elaborated that the effect of that ruling was that the House “shall not proceed with any process of approval in respect of the nominations that the National Assembly received from the Office of His Excellency, the President, by the letter dated 31st January, 2011.”

Pushing the dagger deeper inside the KKK belly Marende said: “Additionally, the work of the Departmental Committees of Justice and Legal Affairs and Finance, Planning and Trade and their respective Reports, on this matter shall lapse forthwith in their entirety. The House shall await nominations for the respective offices to be forwarded in the manner provided for by the Constitution read in totality and ensuring full compliance therewith.

Needless to say, this development is not a commentary on the suitability of any individual for nomination or appointment to the offices to which they had been nominated or to any other.” With those words Marende added a chapter in the history book that will be written about this country. His name will appear in that chapter written in golden letters.

Nominations: Principals agree to disagree

The decision by President Mwai Kibaki and Prime Minister Raila Odinga to let Parliament determine the fate of the four nominees to top constitutional offices means the matter will finally have to be determined by the Speaker of the National Assembly, Kenneth Marende. There is no way the Finance, Trade and Planning Committee chaired by ODM’s Chris Okemo can unanimously confirm Kibaki’s nomination of William Kirwa to be the country’s first Controller of Budget.

There is also no possibility of Ababu Namwamba’s Justice and Legal Affairs Committee unanimously accepting the President’s nominations of Professor Githu Muigai as the next Attorney General; Court of Appeal Judge Alnashir Visram as the next Chief Justice and Kioko Kilukumi as the next Director of Public Prosecutions. Members of the two committees are too committed to the stand taken by their respective parties to take a joint stand on either to accept or reject the nominations.

The reports that the two committees will table before the House will reflect a split along party lines with ODM rejecting the nominations and PNU accepting them through furious exchange of bitter words. The whole scenario may end up with a division of the House that will probably see Kibaki’s nominations going through. Even if that happens and may be long before the division, an MP, may be Gitobu Imanyara , may ask the Speaker to determine the constitutionality of the nominations before the House either accepts or rejects them .

That is what is likely to happen to Kenya next Thursday when a mini crisis will emerge from the National Assembly’s inability to implement a vital part of the new Constitution. As usual, the whole problem will end up on Marende’s lap, forcing him to make an interpretation of the Constitution on behalf of the nation. That he will probably do after allowing another lively session of bitter war of words between the two major parties with the PNU getting a strong backing of ODM rebel MPs which will once again reveal the existence of a KKK alliance in Parliament.

This time Marende may be forced to make a more decisive ruling which will most probably throw the whole problem of the four nominations to the two Principals who may have to repeat the whole exercise all over again. In the second round of nominations a more transparent method involving the Judicial Service Commission and the Commission for the Implementation of the Constitution may be used. But all that will depend on whether this time Marende will reject Kibaki’s nominations.

Examining Marende’s February 3rd’s ruling on this matter leads one to believe this time he may take a very firm stand about Kibaki’s unconstitutional nominations. To begin with Marende has already blocked any possibility of anyone challenging his second ruling on this matter on the basis of the Speaker’s competence to make a pronouncement on interpreting the Constitution.

On February 3rd Marende said there could be ten different issues that may need to be thoroughly examined before Kibaki’s nominations could either be accepted or rejected by Parliament. The first one was whether or not the Speaker was competent to make a pronouncement or determination on the matter of the constitutionality of the nominations and their propriety for transmission to and disposal by the House or whether, conversely, this would be a matter for other constitutional organs and in particular, the Judiciary.

On this issue the Speaker ruled that he, as the leader of the House and the manifestation of the authority of the House, was mandated and obligated to safeguard and jealously protect its sovereignty within the Government to determine what it should or should not do and when and in what manner it should do those things without interference from any other person or authority. Marende explained that this position was recognized in parliamentary practice and traditions and in both the former and the present Constitutions.

According to him it was what the Constitution meant when it vested the legislative authority of the Republic in Parliament and provided that Parliament manifested the diversity of the nation, represented the will of the people and exercised their sovereignty. This was also the essence of the separation of powers that he had every so often pronounced himself upon from the Chair.

Marende very emphatically said the view that responsibility could fall to another organ whether the executive or the judiciary to determine for Parliament a matter before it was, to his mind, constitutional heresy, which he urged every person in this country and more so, in Parliament , to completely purge and disabuse themselves of. With such a strong stand taken by the Speaker of the National Assembly no one can now challenge his competence to interpret the Constriction on matters before the House. According to him there is probably no way that the House could possibly function if the Speaker could not interpret the Constitution

There may be those who would still challenge him not to make a ruling on a matter that is pending in a Court of law sighting the rule of sub judice as it is found in Standing Order Number 80. But that same Standing Order says the Speaker may allow reference to any matter before the House or a Committee, that particular Standing Order notwithstanding. This means the pending matter in Court concerning Kibaki’s nominations will not prevent Marende from making a ruling on the same matter.

The second issue which Marende is likely to touch on while making a ruling on Kibaki’s nominations concerns whether or not Parliament will this time be properly seized of the nominations. Whereas on February 3rd the Speaker was of the opinion that at that point there was neither a motion nor a proposed motion before the House on matters concerning Kibaki’s nominations, when making the second ruling on the issue the matter will indeed be properly before the House and therefore within his powers to make judgement on.

The third issue Marende will examine during his second ruling will concern the status, import and weight to be attached to the opinion of the Commission on the Implementation of the Constitution on the matter of Kibaki’s nominations. In Marende’s first ruling on the matter on February 3rd he said he had no doubt in his mind that bodies like the Law Society of Kenya, the International Commission of Jurists and the Federation of Women Lawyers (FIDA) would have had something to say about the nominations.

Indeed these bodies had come out in the public domain asserting certain positions which they contend would assist the country in arriving at a lawful and fair determination of the matters in issue. These, said the Speaker, are important matters to note, because, as Honourable Members were no doubt aware, if there was any matter relating to the conduct of public affairs in general and to the Legislature in particular, that the Constitution had comprehensively addressed, it is the matter of the centrality of the rule of law, democracy, transparency, accountability, inclusiveness and the participation of the people.

With views like that Marende is likely to rule there was neither transparency nor inclusiveness in Kibaki’s nominations. This may be one of the strong reasons for his rejection of the nominations. He almost suggested in his first ruling that on matters of implementation of the new Constitution a more collegiate and participatory process was required not only as a matter of natural justice and sound conduct of public affairs but also as a requirement of the Constitution.

The fourth issue Marende is likely to rule on concerns whether or not the provisions of the Constitution require the involvement of the Judicial Service Commission in the nomination process and going hand in hand, if the Constitution dictates that the process be participatory, competitive and transparent. The views expressed by the Speaker during his first ruling suggest that he thinks the JSC has an important role to play on the entire nomination process. In his second ruling he may throw out Kibaki’s nominations for the fact that the JSC was never consulted among other reasons.

The fifth issue Marende is likely to revisit in his possible second ruling concerns weather or not there were consultations between the President and the Prime Minister as contemplated by section 29(2) of the Sixth Schedule to the Constitution. According to the Speaker, tied to this point, are a number of other questions including what the minimum threshold of consultation should be and if consultation denotes concurrence, consensus or other measure of agreement. Additionally there is the further point of what was intended by the drafters of the Constitution in providing for consultation as they did.

On the matter of consultation and the constitutional meaning of the word, Marende is likely to disappoint the KKK by agreeing with both Raila Odinga’s argument on the matter and the argument of JSC. The sixth issue that may be contained in the Marende’s second ruling will concern the import of making the consultations subject to the National Accord and Reconciliation Act. On this one Marende is likely to agree with the views already expressed by the PM, the JSC, the LSK, FIDA and the CIC.

The seventh issue that is likely to be examined by Marende during his second ruling will concern whether or not serving member of the judiciary is constitutionally eligible to be nominated and appointed as Chief Justice. ODM and the other institutions mentioned above will be pleased to hear Marende ruling that serving judges should not be eligible to be nominated and appointed as Chief Justice before they are vetted by the JSC.

The eighth issue on which Marende is likely to comment on during his likely second ruling will concern whether or not the nominations meet the constitutional requirements of regional balance and gender parity. His likely conclusion would be they do not, which will give him yet another reason to reject them. The ninth issue Marende will examine will concern whether or not the nominations of office-holders amount to a dispute within the meaning of the Political Parties Act. Whichever way he rules on this issue the rift between ODM and PNU/KKK is likely to widen from now on.

Last but not least, Marende’s expected ruling may examine whether or not the correct approach to the questions raised on the propriety of the nominations could be resolved by a vote in the House to approve or disapprove the nominees. If he rules on the other issues in the manner I have tried to predict, then there will be no need for the House to vote on the matter which is likely to be taken back to the Principals.

Ousting Raila illegally is unwise

KKK is plotting to oust Raila Odinga from his position as the Prime Minister of the Government of Kenya. But they are trying to do so by circumventing the law. The plot was exposed by The Standard of February 7, 2011 which said there was a move to amend the National Accord and Reconciliation Act of 2008 “ by claiming Raila no longer commands a majority allegiance in ODM .”

The story did not indicate the specific part of the law the rebel MPs were planning to amend to deny the PM the right to claim the leadership of the party. But it said the rebels plan “to play the card of numbers, with the help of Kibaki’s Party of National Unity.” Whereas it is true that the Kalenjin MPs joined by their Kikuyu and Kamba friends form a very strong force in Parliament, that force is not legally strong enough to remove Raila from his job as the country’s Premiere.

Raila is the Prime Minister of Kenya today because Section 3 (1) of the National Accord and Reconciliation Act of 2008 says there shall be a Prime Minister of the Government of Kenya. Section 3(2) of the Act says the person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of (a) the political party that has the largest number of members in the National Assembly; or (b) a coalition of political parties in the event that the leader of the political party that has the largest number of members in the National Assembly does not command the majority in the National Assembly.

The argument by the KKK to deny Raila the Premiership is probably based on the assumption that either ODM is no longer the party that has the largest members in the National Assembly, which is not true, or that someone else, other than Raila Odinga, is the leader of a coalition of political parties that commands the majority in the National Assembly. KKK may very well be numerically superior to any other political group in the National Assembly; but that superiority cannot be officially recognized without a formal establishment of an anti Raila coalition of political parties in Parliament that is in keeping with requirements of the Standing Orders.

The only person who can give the interpretation of the legal establishment of such a coalition is Speaker Kenneth Marende who has made a name for himself for being very level headed in determining the right legal position of any standing order dispute. So far William Ruto has been telling his KKK friends at political rallies outside Parliament Building of his plan to topple Raila Odinga’s position as the Prime Minister. He has not done so officially in the Chamber. Officially Raila is still the leader of the party with the majority MPs in Parliament, because no one has officially quit the party.

According to The Standard story Ruto and his allies, who previously announced that they were planning to quit ODM, and would register or join another party, appear to have ditched that plan in favour of removing Raila as PM. If The Standard story is true then the legal way for the rebels to get rid of Raila as the Prime Minister would be to get rid of him as the ODM leader first. Whoever inherits Raila as the ODM leader would automatically become the Prime Minister of the coalition Government of Kenya.

But to get rid of Raila from the ODM, Ruto and his friends would have to go back to the party and call for a meeting of the highest organ of the party where they would challenge Raila’s leadership of the party. Short of that Raila would legitimately remain the leader of the ODM until after the next party national elections. And as long as he is the legitimate leader of the ODM he will remain the Prime Minister of Kenya unless the rebels officially pull out of the party and seek to be reelected through either PNU tickets or tickets of a political party that intends to form a parliamentary coalition with PNU.

So if Ruto wants to become the new Prime Minister after Raila, he must legally topple Agwambo in ODM first. He cannot become the Prime Minister of this country by illegally joining hands with his KKK colleagues in PNU. Before the rebels in ODM form a parliamentary coalition of political parties with PNU that will command the respect of Kenyans as well as that of the Speaker of the National Assembly, they should first sign an agreement on the principles of partnership of the new coalition Government.

After all, that will indeed be a new Government between PNU and rebel ODM members. Indeed even Raila himself had to sign such an agreement with Mwai Kibaki in the presence of Kofi Annan, and Jakaya Kikwete. It is the agreement on the principles of partnership that gave birth to both the National Accord and Reconciliation Act of 2008 and the Coalition Government itself. Failure to topple Raila in the ODM party first before thinking of forming a new coalition government the rebel ODM MPs must resign their Parliamentary seats before thinking of establishing a new coalition Government with the fellow KKK members in the PNU.

Ruto must know that the days of quitting one political party and joining another one on the basis of the side of the bread that is buttered are now gone and gone forever in Kenya. Before they think of forming a new coalition they must quit ODM as it is stipulated in Article 103. (1)(e) of the new Constitution which says the office of a Member of Parliament becomes vacant if, having been elected to Parliament as a member of a political party, the member resigns from that party or is deemed to have resigned from the party.

Besides that, Raila should probably take serious steps to discipline the rebel MPs by showing them the door though that would be risking making them come back after expensive by elections between now and next year. May be that would be a risk worth taking because it would serve the purpose of cleaning up the party and also of introducing the badly needed discipline in the party.

The Standard story said Ruto is desperately trying to become the next Prime Minister after Raila before next year because he hopes, as a Prime Minister, he will not be touched by Luis Moreno-Ocampo. Nothing could be further from the truth. Moreno-Ocampo does not care what position suspects he wants to prosecute hold. Right now he is after President Omar al Bashir of Sudan for crimes against humanity that he committed in Darfur. William Ruto becoming the Prime Minister of Kenya would not change the fact that he is a wanted suspected criminal by the ICC.

For some very strange reasons the KKK alliance believes that a local tribunal will not be able to find the Ocampo Six guilty and that is why they are sparing no efforts in trying to get the referral from the ICC. This makes it all the more important for the judicial appointments to be made in a transparent and constitutionally correct manner. If the Ocampo Six are to be tried in Kenya then they must be tried by an internationally recognized tribunal that has the respect of the ICC. Hence the importance of protecting Raila’s position as the Prime Minister of Kenya because he alone seems to be determined to fight for justice for the forgotten hundreds of thousands of suffering Kenyan IDPs.

To try and topple the Prime Minister illegally would be the most foolish thing to do because it is likely to anger the majority of Kenyans who support the ODM leader even when some of them are not even members of the party. Efforts by some PNU MPs to pull out of the coalition Government would be faced by the same predicament of forming a new coalition with the rebel ODM MPs. Without a proper legal process to establish such a coalition Raila will remain Kenya’s Prime Minister until the next general election. If Mwai Kibaki pulls out of the coalition Government , his Government will be a minority Government with no legitimacy to remain in power.

Musinga upholds Kenya’s constitutionalism.

Speaker Kenneth Marende’s ruling on Kibaki’s nominations gives the principals more time to consult constitutionally and save face against losing respect among their followers. His handing the matter over to the relevant parliamentary committees simply means Kibaki and Raila can in fact still consult and follow the proper constitutional procedures before filling the four important constitutional offices. As Marende was delivering his Communication from the Chair, however, the High Court of Kenya declared President Kibaki’s nominations a breach of the Constitution.

Justice Daniel Musinga’s ruling is a major step towards defending constitutionalism in Kenya where the respect for the supreme law has always been taken for granted by the Executive. Soon after independence Jomo Kenyatta changed the constitution to give himself all sorts of powers that threw the people’s human rights into the dustbin of despotism. President Daniel arap Moi simply perfected Kenyatta’s dictatorship by making himself, constitutionally, the most powerful despot in this part of the world.

Though the constitution we have just rejected had an imperfect Bill of Rights, its problem was not only to give too much power to the Head of State, but also to allow the President to violate both the first and second generation human rights with impunity. Luckily today the country has a Constitution that has a commendable mechanism of correcting any attempt to violate it, long before the violations have any negative impact.

It is also because of the new Constitution’s Articles 33 and 34 which protect the freedoms of expression and the media that Kenyans had a very healthy debate on Kibaki’s nominations also long before Musinga made his verdict. It is as a result of the healthy debate that Kenyans trusted that the High Court could not back any unconstitutional appointment by the Head of State.

Musinga’s defence of the Constitution elevates the country into a new level of constitutionalism which will make Kenya even more respected as a country that does not only believe in the rule of law , but also implements its supreme law without fear or favour. Having a good constitution like we do is one thing; but obeying it religiously and establishing real constitutionalism in the country is another, much more admirable thing.

The level of constitutionalism established by Musinga’s ruling is what has always bothered the so called KKK alliance, whose reasons for either directly or indirectly opposing the new Constitution can now be seen more clearly. Both the strong opponents of the Constitution and their watermelon friends know that the High Court cannot be shaken by their empty threats to anyone who opposes their anti reforms stand. Now they are threatening to pull out of the coalition Government.

Suspecting that Musinga would come up with a ruling that would back the provisions of the Constitution that demand proper consultation between the President and the Prime Minister before nominations for constitutional positions are made, three PNU MPs , Jeremiah Kioni, Nderitu Mureithi and Jamleck Kamau called for their party to pull out of the coalition Government. The three must be dreaming of the formation of a KKK government with ODM sitting in the Opposition benches.

Their myopic calculations seem to forget a number of facts. Fact number one is that KKK is not a legal political party that can form a Government without rebel Kalenjin ODM MPs from the Rift Valley seeking a new mandate from the voters to quit ODM officially. Fact number two is that the country cannot forget the real reasons we have a coalition Government in Kenya.

KKK would do themselves a great favour by having a good look at the Preamble of the First Schedule of the National Accord and Reconciliation Act. In a nutshell, that Preamble explains the real reasons this country has a coalition Government. In case the KKK has forgotten this country had a serious crisis caused by the muddled elections of the 2007, a revisit of the events that took place at that time is opportune. As a result of tribal clashes which, arguably, were started by members of the ODM who want to pull out of the party to join the KKK, more than 1,300 Kenyans lost their lives and over half a million others were displaced from their homes.

There is very little doubt that Kibaki and his KKK friends want to establish a local tribunal soon to avoid the ICC. No local tribunal can, however, be established without a Chief Justice and a DPP. Knowing that Luis Moreno-Ocampo means business in prosecuting those who masterminded the clashes, the KKK, therefore, is eager to have a local tribunal established fast to secure the needed referral from the ICC.

The emotional agitation to have Kibaki’s nominations for the new Chief Justice and the new Director of Public Prosecutions (DPP) accepted, as soon as possible, and possibly without any alterations, cannot but make a number of people wonder if there is some hidden agenda in getting the nominated personalities take over those two posts so urgently.

The history of the gentlemen earmarked for the two jobs is very well known. Justice Alnashir Visram has a record of making judgments that go against the respect for freedom of the expression and that of the media. His judgments, it can be argued, have had a tendency of supporting the high and mighty. Mr. Kioko Kilukumi, who is the nominated candidate for the post of the DPP, is a well known defender of William Ruto whom Moreno-Ocampo wants to prosecute.

It so happens that Marende sort of allowed the Parliamentary Committees to debate Kibaki’s nominations. Be that as it may the two crucial nominees for the post election violence trials will still have to be thoroughly examined before being handed the top jobs to bring justice to the forgotten IDPs. Now that the High Court has declared the nominations illegal even Marende’s ruling seems to be in jeopardy. If the two Principals consult according to the Constitution and still nominate the two names then Parliament would still have to scrutinize them thoroughly before approving them.

Musinga’s ruling clearly shows the importance of always reading the new Constitution together with the National Accord and Reconciliation Act of 2008. While implementing the new Constitutions, therefore, MPs have an obligation of never pushing this country back to the sadness of 2007 disputed Presidential elections. If anything, the MPs should be making every effort to remedy the divisions in this country that were brought to the surface by the 2007/08 clashes.

Rather than threatening to pull out of the Coalition Government, the KKK MPs would do this country a lot of good by implementing what the Preamble of the Accord says. Among other things the Accord says the Kenyan people are now looking to their leaders to ensure that their country would not be lost. The continued argument over Kibaki’s nominations is creating a very unnecessary tension in the country.

Reminding our leaders what the Accord says, therefore, is most appropriate at this time. What the Accord said when it was signed in 2008 could in fact be repeated word for word to solve the current situation. At that time it said: “Given the current situation, neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward and begin the healing and reconciliation process.”

At that time Raila Odinga, representing the ODM; and Mwai Kibaki, representing the Government of Kenya and PNU, as they were witnessed by President Jakaya Kikwete of Tanzania and Kofi Annan as the Chairman of Panel of Eminent African Personalities, agreed to step forward together, as political leaders, to overcome the then crisis and to set the country on a new path. It so happens that the country is on the verge of facing a new crisis and there is a need for the two Principals to once again commit themselves to work together in good faith and as true partners , through constant consultations and willingness to compromise.

It is obvious that the KKK will claim that Kibaki signed the Accord not only on behalf of the PNU but also on behalf of the Government of Kenya. Their claim would suggest that that just as there was a Government before signing the accord so would there be a Government when PNU pulls out of the Accord. The question to ask those with such a short sighted view is simply to remember what type of Government Kibaki led before he was joined by Raila Odinga to form the Coalition Government.

Is that the kind of Government KKK would like to establish without ODM? Kenyans would like Kibaki and Raila to work together in the spirit of the Accord, which is now part of the Constitution. Kenyans would like Raila and Kibaki to, like the Accord says, create an environment conducive to a genuine partnership that would build mutual trust and confidence.

The arguments between Kibaki and Raila clearly showed that the two of them had certain personalities they would have preferred to occupy the position of the Chief Justice. According to what came out in Parliament, Raila Odinga would have preferred Justice Riaga Omolo while Mwai Kibaki would have preffered to have Justice Paul Kihara for the top job. When the two Principals meet again for further consultations as recommended by almost all the respected law and judicial institutions they should remember the words of their own Accord which said that the agreement they made was not about creating positions that reward individuals.

The two should remember that the agreement they made was to seek to enable Kenya’s political leaders to look beyond partisan considerations with a view of promoting greater interest of the nation as a whole. They should remember that they pledged to provide the means to implement a coherent and far reaching reform agenda, to address the fundamental root causes of the conflict of 2008 and to create a better, more secure, more prosperous Kenya for all.