Move by Kibaki an illegality, says Raila

By Alex Ndegwa and Augustine Oduor

The political row over top judicial appointments snowballed into a crisis as Prime Minister Raila Odinga rejected the ‘unilateral’ nominations by President Kibaki and warned of a "major constitutional crisis".

Raila said he was "shocked and dismayed" at the "unilateral" appointment of the Chief Justice, the Attorney General, Director of Public Prosecutions and the Controller of Budget.

And without mentioning names he made a damning allegation: "The appointments have been made to serve the interests of a few people, including elements within upper echelons of Government who have serious credibility and integrity issues and constitute the networks of impunity."

Prime Minister Raila Odinga has rejected the 'unilateral' nominations by President Kibaki and warned of a "major constitutional crisis".

The PM insisted he was informed of the new appointments while in Addis Ababa, Ethiopia, contradicting a PPS dispatch that stated the President nominated the holders "after consultation with the Prime Minister".

"I can’t lie if we indeed had consulted," Raila said. The PM recalled the controversy over the memorandum of understanding, which tore apart the National Rainbow Coalition, and the appointment of electoral commissioners in the run-up to the 2007 General Election "without consultations and we know where we ended. We must learn from past mistakes. The reform of the Judiciary and the entire law enforcement sector must be carried out carefully and with the involvement of the people of Kenya.

"The process cannot succeed if we begin with a serious dispute and controversy of this kind," Raila added.

He said public appointments should adhere to the principles in the Constitution for fair competition, merit and afford all Kenyans equal opportunities.

And after Raila had addressed journalists at Jomo Kenyatta International Airport yesterday afternoon, Government Spokesman Alfred Mutua, who communicates the official position of the Executive, told a hastily convened press conference the two principals had "exhaustive consultations".

Mutua said by Friday evening Kibaki and Raila had agreed on the names of three of the four appointees, adding by the time the nominations were made public the PM had sanctioned all the nominees.

Sparking outrage

President Kibaki announced the nomination of Justice Alnashir Visram for the Chief Justice position, Prof Githu Muigai as Attorney General, and Mr Kioko Kilukumi, Director of Public Prosecutions.

Also nominated was Mr William Kirwa as Controller of Budget, with the appointments sparking outrage in Raila’s ODM party for the second time. The reappointment of Major-General Michael Gichangi as the Director General of the National Security Intelligence Service, last week, was also questioned.

Backing the Prime Minister’s call, National Heritage Minister William ole Ntimama and former Constitutional Affairs Minister Martha Karua termed as unconstitutional the process of appointing key people to the Judiciary.

They said the move by President Kibaki to appoint the four was unacceptable.

They asked President Kibaki to withdraw the names until full consultations are done and due process followed.

"What I see happening is that the Executive is full of impunity and deliberately moving out to rob Kenyans of the new dawn," said Karua.

She said it was not about the credibility of the individuals appointed but the process.

For the Chief Justice to be appointed, Karua said, the Judicial Service Commission (JSC) should first recommend names and present the same to the President for him to pick the nominee. He has to do this in consultation with the Prime Minister.

The name of the person nominated by the President, she added, is then tabled in Parliament for vetting then formally appointed.

The Gichugu MP said the process of filling key positions in the Judiciary must be competitive, and not just names being bandied around.

"We must resist this move and demand that appointments are done properly and not through shortcuts.

Sixth Schedule

Karua appeared to be unhappy with Article 24 of the Sixth Schedule, which gives the President powers to expressly nominate the Chief Justice after consulting the Prime Minister under the provisions of the National Accord.

The Constitution says: "A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act 2008, and after consultation with the Prime Minister and with approval of the National assembly."

But Karua wondered why Kibaki hurriedly made the appointments just when Parliament convened and authorised the JSC and the Commission for Implementation of the Constitution, which are mandated to deal with such matters.

"I ask Parliament to reject the names until due process is followed," she said.

Ntimama said it was clear the two principals had not agreed on the nominees and the appointment made without consultations.

"I thought we were done with decrees and dictatorial pronouncements. This kind of manoeuvre is subverting the Constitution," he said, at his residence yesterday.

Ntimama read mischief, saying the names of trio were churned out during a peace meeting last week in Eldoret, which Kibaki attended.