Media reports biased on nominations of CJ, DPP and AG


I have just read several editorial pieces on the above subject and I want to pose some questions to members of the press:
1. What is your understanding of sections 156(2), 157 (2) and 228 (1) of the constitution which states that "The Attorney-General…the Director of Public Prosecutions and the Controller of Budget shall be nominated by the President and, with the approval of the National Assembly, appointed by the President." These sections as read together with section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) set out the procedure of filling the positions of the Attorney General, Director of Public Prosecutions and the Controller of Budget.

I would imagine that these clauses are worded in very simple language and that they do not require reference to a legal dictionary for interpretation. In Law School, I was taught by Professors PLO Lumumba, Githu Muigai Esq, J B Ojwang and Kivutha Kibwana that the first rule of interpretation stipulates that at all times a provision of law ought to be construed in its plain and ordinary meaning. It would appear that in the instant case these clauses have acquired a new meaning to the highly esteemed men and woman of the media.

2. Section 166 (1) of the Constitution as read together with section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) provides that  "The President shall appoint the Chief Justice and the Deputy Chief Justice…….but until after the first elections under this constitution… the Chief Justice and the Deputy 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," These provisions in their plain and ordinary meaning do not countenance the involvement of the Judicial Service Commission (JSC) in the initial appointment of a new Chief Justice for the Republic of Kenya under the present constitution. The JSC is not even properly constituted since a new Chief Justice is yet to be appointed.

It is a legal absurdity that the current Chief Justice as well as two serving Judges, Justices Riaga Omolo of the Court of Appeal and Isaac Lenaola of the High Court and the Registrar of the High Court, Lydia Achode would want to be consulted or involved in the appointment of a new Chief Justice. This would be the first time in Commonwealth Jurisdictions that subordinate judicial officers sit in a committee to decide who should superintend over them. Their opposition to the nominations by the President is inherently illogical and informed by personal rather than legal considerations. It is imperative to note that that these judicial officers will subject to vetting by the JSC and the National Assembly.

The Chief Justice will chair the JSC and one cannot fail to read mischief and inherent bias by some members of the JSC who want to determine beforehand who will supervise and vet them. The argument by Justices Evan Gicheru, Riaga Omolo, Isaac Lenaola and the Registrar of the High court is therefore flawed and flies in the face of the maxim that "a man shall not be a judge in his own course".

 It is even worse for Hon. Amos Wako the Attorney General to seek to be involved in the selection of a new Chief Justice and his own successor when he has constantly been cited by local and international human rights groups as the major sole impediment to reforms in the Criminal Justice system which has occasioned spiralling impunity in Kenya.

3.  Who is the media holding brief for in this matter? You pieces are highly lopsided and devoid of any reference to the applicable law! Almost all your editorials on the above subject are slanted to give the impression that the President breached the Constitution in making the above nominations. Every other media house seems to have taken an editorial stance informed by one side of the Coalition Government that they were not consulted. A purely legal process has thus become mired in the miasma of highly divisive and emotive politics. Why do the media believe one side of the coalition and not the other? Why is the media so keen to create an impression that the PNU side of the coalition is the “mainstream” government and ODM the “internal” opposition? Why are some senior editors now asking the nominees to decline the nominations? Do members of the press have names of other people they want nominated for the four positions?

The Hon. James Orengo, Minister for Lands was the first to cast aspersions into the propriety of the procedure for the above nominations. Since he is not one of the Principals, it would be proper for purposes of setting the record straight to ask him how he learnt of the names of the individuals nominated. The consultation stipulated in section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) is not defined nor is its ultimate outcome stated. It is only an adjectival (procedural) requirement of law and the Constitution gives the National Assembly the power to determine the substantive issues relating the nominees. Whether the President consulted the Prime Minister or not is a question of fact which only the two Principals can shed light on. However the outburst by Hon. Orengo is evidence that there was a discussion of some sort and that names were floated for nomination to the above offices.

What is discernible is that there was no consensus but again the law does not dictate that there must be consensus. Whether such discussion or consultation resulted in an agreement or disagreement is political issue which should be now addressed in the National Assembly where it rightfully belongs. The fitness of these Kenyans to hold these offices as required by Chapter 6 of the Constitution should also be addressed by the National Assembly. It is important for members of the press to report matters relating to the implementation of the question truthfully, fairly and objectively. Lawyers will always differ in the interpretation of the law. That is why courts exist. Adopting the views of one side as the ultimate gospel truth is fallacious.

CHAIR-Kenya Institute of Forensic Auditors (KeIFA).

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