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CIC picks lawyers on appointments

NAIROBI, Kenya, Feb 24 – The Commission for the Implementation of the Constitution (CIC) has recruited a team of four lawyers to seek guidance and interpretation of the Constitution from the Court of Appeal regarding nominations and appointments of constitutional office holders.

CIC Chairman Charles Nyachae said in a statement that “the lawyers were recruited through a competitive process.”

“They will seek an advisory opinion before the Court of Appeal (acting as the Supreme Court) under Article 163 (6) and Section 21 (2) of the sixth schedule of the Constitution on several questions,” said Mr Nyachae. 

The lawyers are Njoroge Rigeru, Judy Thongori, David Majanja and Timothy Bryant.

He said the questions include (but are not limited to) the applicable positions in the Constitution in the process of appointment of Constitutional office holders in view of the transitional provisions of the Sixth Schedule and the substantive provisions of the Constitution which have not been suspended. 

They will also be seeking the court to state the basic requirements in the process of appointment of the Constitutional office holders in light of the national values and principles set out in Article 6, 10, 73 and 232.

Another question will be: “The implications of the phrase “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” in sections 24 (2) and 29 (2) of the Sixth Schedule.”

This action has been necessitated by the recent disagreement over the nominations of Court of Appeal Judge Alnashir Visram as the Chief Justice and lawyers Githu Muigai and Kioko Kilukumi as Attorney General and Director of Public Prosecutions respectively. President Mwai Kibaki had also nominated William Kirwa for Controller of Budget.

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President Kibaki and Prime Minister Raila Odinga have been locked up in a tussle over the nominations with Prime Minister insisting the President failed to consult him as required by the National Accord.

A group of women organisations have also contested the matter in the constitutional court contending that gender equality was not respected as there is no woman in the list of four. In issuing an interim injunction, High Court Judge, Daniel Musinga ruled the nominations were unconstitutional.

Justices Kalpana Rawal, George Dulu and Luka Kimaru who were appointed to hear the case directed the parties to file all their documents within seven days so that the matter can be heard from March 2 on a day-to-day basis.

CIC was established by the Commission for the Implementation of the Constitution Act 2010 with the mandate of monitoring, facilitating and overseeing the development and reform of policies, legislation and administrative procedures for the effective and timely implementation of the Constitution of Kenya 2010. 

In discharge of its facilitative and oversight roles, the Commission as a state organ is entitled to seek advisory opinions of all matters pertaining to the interpretation of the Constitution.

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