Kibaki did not need to consult on AG, DPP

, NAIROBI, Kenya, Jan 31 – A number of lawyers have faulted the Judicial Service Commission (JSC) for overstepping its mandate in questioning the nominations to the office of the Attorney General and Director of Public Prosecutions.

Nairobi lawyer Ken Ogeto told Capital News that the JSC had no role to play in the nomination of officers to the two positions.

In faulting the JSC, Mr Ogeto cited section 156(2) of the constitution which states that "The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President."

He further pointed out on the transitional clauses specified the time-frame for the exit of the AG, but did not make reference to manner of nominating a future Attorney General as was the case with the CJ.

On the CJ, the transitional clauses state: "A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly," the Constitution states.

Mr Ogeto spoke hours after members of the JSC addressed a media conference and demanded the withdrawal of names President Mwai Kibaki had announced as nominees to the post of CJ, AG and DPP. The names have been disputed by Prime Minister Raila Odinga who claims he was not consulted as required by law.

Another lawyer who sought anonymity shared similar thoughts with Mr Ogeto.

He said the law was explicit that the Attorney-General is to be nominated by the President with the approval of the National Assembly.

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.

"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," they said in a statement read by JSC Secretary Lydia Achode who is also the High Court Registrar.

"That entails a withdrawal of the nominations and a fresh start. In our view, the letter and spirit of the Constitution must be adhered to."

But Mr Ogeto said the JSC should only express concerns over the nomination of the Chief Justice and not the AG and DPP.

"There could be contention in respect to the nomination of the Chief Justice because of the transition clauses which requires that there be consultations, but in relation to the AG, there is no provision for President Kibaki to consult anybody. That also applies to the DPP," he said.

Mr Ogeto said going by the statements expressed by the two principals after the nominations were announced, it appears there was consultations.

"It is clear from the statements expressed that the Prime Minister wants a foreigner nominated to the post of the Chief Justice while President Kibaki wants a local nominated, then it means there have been consultations. It is apparent that the contention is about preferences," he said.

"Consultations do not mean there must be concurrence… that is not what it means."

President Kibaki on Friday nominated Court of Appeal Judge Alnashir Visram to head Kenya\’s Judiciary and Professor Githu Muigai as his pick for the next Attorney General, while lawyer Kioko Kilukumi 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.

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  • ebrahimo

    omg.if lawyers can argue like this then im nobody.who is going to help us from this mess.AMOS WAKO pliz u r being paid for this. give us the way forward hata kama ni ukweli ama uwongo.ukweli ni kuwa RUTO alisema hii katiba ni mbaya,i can now see the sense. RED not GREEN.wakenya tuko kwa shida.we ll remain third country nationals forever.8-4-4 na form 6 should be scrapped forever.and shut all universities.

  • Martin

    Who do these people think they are? Perhaps it\’s about time for a new revolution in Kenya such as the one going on in Egypt. Kick Kibaki, Raila and all the MP\’s out ASAP!

  • Ndombe

    With due respect, I beg to differ the Mr.Ogeto\’s assertions.Lets not read the Constitution selectively but as a whole.As much as Articles 156 & 157 must be read together with Article 29 (2) in the Sixth Schedule in the Transitional clauses.Period.

  • Stan

    The great enemy of the truth is very often not the deliberate, contrived, and dishonest—but the myth: persistent, persuasive, and unrealistic. Too often we hold fast to the clichés of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.JFK …IITS sad that some of u are riding the politicians band wagon,lets respect our constitution and we will never worry about what tribe the president is.we have very low expectations of our leaders and they dont disappoint.its time we raised the bar on them and do away with sycophants

  • Abdallahjei.

    Beware Kenyans, Impunity is here with us in full force through the Back Door!

  • dennis

    if Mr. ruto has a pending case in court, how comes his lawyer is being appointed DPP, don\’t you think he will have a big role to play in ruto\’s prosecution?

  • David

    ok now that Ogeto has agreed that the nomination of CJ was wrong he should as a matter of urgency go ahead and advise his godfathers (PNU)to withdraw the name of Visram. Lets start from there. Thereafter we shall consider the case of DPP & AG.

  • Jamandas

    Mr.Ogeto stop misleading Kenyans,Kwani even lawyers do not read the constitution.Kindly read this\’New appointments
    29. (1) The process of appointment of persons to fill vacancies
    arising in consequence of the coming into force of this
    Constitution shall begin on the effective date and be finalised
    within one year.
    (2) Unless this Schedule prescribes otherwise, when this
    Constitution requires an appointment to be made by the
    President with the approval of the National Assembly, until
    after the first elections under this Constitution, the President
    shall, subject to the National Accord and Reconciliation Act,
    appoint a person after consultation with the Prime Minister
    and with the approval of the National Assembly.

  • Rukia

    Impunity is here with us-kenyan leaders in full force through the Back Door!God can save kenyan,long kenya long live Raila

  • Rukia

    Impunity is here with us-kenyan leaders in full force through the Back Door!God can save kenyan,long kenya long live Raila

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