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.