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.