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.