Judiciary breaks ranks with Kibaki on nominees

January 31, 2011 12:00 am

, NAIROBI, Kenya, Jan 31 – A supremacy battle between the Judiciary and the Executive is playing out, after the Judicial Service Commission (JSC) on Monday rejected President Mwai Kibaki\’s judicial nominations and called for a "fresh start."

In an unprecedented move, the country\’s outgoing Chief Justice Evan Gicheru and the Chief Legal advisor Amos Wako sat in a news conference where the JSC announced its objection to the manner in which the nominations were done.

The commission petitioned the Head of State to withdraw the nominations to post of Chief Justice, Attorney General and Director of Public Prosecutions to allow a transparent process devoid of political intrigues.

"In light of the divergent views coming from the principals, we are of the view that the principals need to reconsider their respective positions. There is a need for a rethink of the matter and to put the country first.  That entails a withdrawal of the nominations and a fresh start," a statement read by the secretary of the JSC Lydia Achode – who is also the High Court registrar – said.

She added: "In our view, the letter and spirit of the constitution must be adhered to."

The commission specifically expressed misgivings about the appointment of the Chief Justice, saying there was need to involve the JSC as required by law.

"It is our view that in order to give the process of appointing judicial officers legitimacy, public confidence, ownership and acceptance by the people of Kenya, the JSC must play an integral role in the process," she said.

Although the constitution gives the commission the mandate to nominate future CJ\’s and judges before appointment by the President, the transitional clauses give the Head of State powers to appoint a replacement for the current Chief Justice.

President Kibaki on Friday nominated Court of Appeal Judge Alnashir Visram to head Kenya\’s Judiciary.

The President also named Professor Githu Muigai as his pick for the next Attorney General, while lawyer Kioko Kilikumi is listed as the country\’s new Director of Public Prosecutions.

A statement from the Presidential Press Service said the appointments had been made after consultations with the Prime Minister and in accordance with the Constitution, but Mr Odinga has insisted he was not involved. He claimed that the appointments were null and void since he was not properly consulted as provided by the Constitution.

The names are expected to be forwarded to Parliament for debate and approval after which President Kibaki will appoint the nominated individuals.

Mr Odinga on Saturday said the \’unilateral\’ decision amounted to a constitutional crisis. His Orange Democratic Movement and President Kibaki\’s critics have also called for the withdrawal of the names.

Constitutional Affairs Minister Mutula Kilonzo has however opposed the recall, and instead rooted for a political solution. Mr Kilonzo told Capital News that a withdrawal could amount to an embarrassment to the presidency.

"I would call on the two principals to come out and shake hands and tell the country they have agreed," said the Minister.

The Minister maintained that competitive recruitment of the officials would have been best suited for that.

"If the principals had listened to my advice we would not be seeing the shenanigans we are now seeing," he said.

The Minister said the battle now shifts to Parliament where the House will approve or reject the names.

The Party of National Unity (PNU), its affiliates and friendly MPs have planned a crucial meeting on Tuesday to strategise following the disagreement.

The meeting is expected to come up with ways to counter the PM\’s political tactics which PNU has interpreted as \’seeking public sympathy.\’ 

Parliament is due to resume sittings on Tuesday afternoon.

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