By Raila Odinga
The Grand Coalition Government was formed on the foundation of the Constitution of Kenya and the National Accord and Reconciliation Act.
The provisions of the Constitution and the National Accord and Reconciliation Act have been secured by the new Constitution as promulgated on the 27th of August 2010 and therefore the GCG is a body and structure established by the Constitution.
The Constitution spells out the national values and principles of governance which must be complied with by all state organs, state officers and all persons whenever any of them makes or implements public policy decisions.
This applies to the President and the Prime Minister. The values and principles include the Rule of Law, Participation of the People, Inclusiveness, Good Governance, Transparency and Accountability.
The Constitution also spells out the principles of public service which include fair competition and merit as the basis of appointments and promotions and affording all Kenyans equal opportunities, training and advancement at all levels of public service.
The guiding principle of leadership and integrity include selection on the basis of personal integrity, competence and suitability and this should of course be done without being influenced by nepotism, favoritism and other improper motives.
These are fairly high standards which have been enumerated and elaborated by the constitution. These standards form the very basic tenets of the constitution and are constant and persistent theme in the Constitution.
The Constitution also requires that any appointment by the President in terms of Section 29 of the Transitional and Consequential Provisions (The Sixth Schedule of the Constitution) can only be made after consultations with the Prime Minister and with the approval of the National Assembly.
The National Accord and Reconciliation Act, which has a constitutional status on the principles of partnership of the coalition government states that there must be real power sharing , constant consultations, mutual trust and confidence and the spirit of and willingness to compromise.
I was therefore deeply shocked and dismayed when I was informed that the President had purportedly proceeded to appoint and Chief Justice, the Attorney General, the Director of Public Prosecutions and the Director of Budget, without adherence to the provisions and principles of the Constitution.
Without a doubt this decision has thrown the country into a major Constitutional Crisis and may be the beginning of the end in respect of the implementation of the reform agenda if not corrected and reversed.
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.
These appointments constitute serious contraventions and violations of the provisions and principles of the Constitution.
The contraventions and violations include the following:
1. As the Prime Minister,I was not consulted at all by the President and before I left for Addis Ababa, my office informed the Office of the President that consultations can only be held upon my return and his return from Ethiopia. This was there a unilateral and decision
2. Section 23 (1) of the Transitional and Consequential Provisions (Sixth Schedule) of the Constitution requires that all judges and magistrates who were in office on the effective date can only continue to serve as such only after they have been vetted for suitability on the basis of mechanisms and procedures established by Parliament.
It is instructive that even the Chief Justice in office immediately before the effective date can only continue to serve on the Court of Appeal after undergoing the process of vetting. This is not a personal issue or a judgment of the individuals who have been allegedly nominated. The fact is that no serving judge is qualified for appointment until they have been vetted.
3. Section 24 (2) of Sixth Schedule provides that the new Chief Justice "Shall be appointed by the President, subject to the National Accord and Reconciliation Act and after consultations with the Prime Minister and with the approval of the National Assembly." Article 166 (1) states that "The President shall appoint the Chief Justice and the Deputy Chief Justice in accordance with the recommendation of the Judicial Service Commission and subject to the approval of the National Assembly. These provisions have not been suspended or exempted in the Transitional Provisions and must therefore be complied with.
4. Because of the principles set out in the Constitution which include fair opportunity, merit, competitiveness and transparency, no appointments can be made without inviting applications and creating a process where the candidates are interviewed and interrogated. That is the only way we can create confidence by the public in the institutions we establish.
5. 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.
This decision cannot stand and for reasons I have stated, among others, it is null and void.
We are taking measures to ensure that we preserve, protect and defend the Constitution of Kenya as by law established and to uphold the sovereignty, dignity and integrity of the people of Kenya.
(The writer is Prime Minister of the Republic of Kenya)