Lawyers admit consultation law is not clear

By Oscar Obonyo

President Kibaki may have exploited a legal loophole in the Constitution in unveiling a surprise nomination list for the Attorney General, Chief Justice, and Deputy Public Prosecutor, legal experts say.

The Constitution demand the President and Prime Minister consult over such nominations. Lawyers told The Standard On Sunday agree the Constitution is vague on what constitutes ‘consultation’. Any formal meeting between the two can, accordingly, give either partner the ticket to plot mischief on account of ‘consultation’.

"The constitutional demand the President and Prime Minister consult does not mean they have to agree and that is why there is the additional need for parliamentary approval," said Justice Minister, Mutula Kilonzo.

Law Society of Kenya Chairman Kennedy Akide faults the clause stating it is purely political and that it is not engraved anywhere in the Constitution.

Posed he: "How does the Constitution define consultation? Is it deemed to have taken place when the principals meet physically, engage in a phone conversation, exchange phone text messages, or written memos?"

The experts, however, point out that the overemphasis on the ‘consultation’ aspect of the law also misses the point as the procedure appointing the Attorney General and Chief Justice appointments are elaborate and clear. Besides, there are concerns over the spirit of the law, which some say the President ignored.

Unnecessary heat

"The President obviously violated the Constitution by not consulting the PM as stipulated in the National Accord," insists Safina leader and former Law Society of Kenya chairman, Paul Muite.

Human rights lawyer Harun Ndubi maintains the consultations must not be cosmetic but elaborate and meaningful: "The President is taking us through unnecessary heat in the same way he did in 2007 by handpicking friends to the electoral commission."

Although the Constitution, through Section 24 (Schedule 6) empowers the President to appoint the CJ, Mutula advises that the President should consider advertising the vacancy to satisfy Article 10 and Chapter 6 of the Constitution on public participation and inclusiveness so that all interested persons may apply.

Muite concurs adding that for transparency and proper constitutional interpretation, the Judicial Service Commission should have recruited the CJ.

Members of JSC had also suggested that the appointment of the new Cj be done through an accountable process. "Our wish was to advertise the position, get three names for the principals, who would then as provided for under Schedule Six of the Constitution, pick one and forward to Parliament for approval before appointment by the President," said Justice Isaac Lenaola moments after being sworn-in.

But Akide says the Constitution givess the President the green light to make the appointments, subject only to parliamentary approval.

"As lawyers we are more keen on the criteria and merit of the appointments. As far as we are concerned, those nominated are some of the best brains within the LSK ranks," said Akide on phone from Arusha, Tanzania.