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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.

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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.

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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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