Experts say MPs cannot arbitrate nominees row

February 17, 2011 12:00 am
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, NAIROBI, Kenya, Feb 17 – The Commission for the Implementation of the Constitution maintains that only the Court can arbitrate whether President Mwai Kibaki’s controversial nominations are constitutional.

Chairman Charles Nyachae said on Thursday that the commission will block the appointment of the nominees in court should Parliament go on to determine the constitutionality of the process. 

Mr Nyachae told a media breakfast on Thursday that Parliament cannot arbitrate in the matter as has been proposed since it has no mandate to interpret the Constitution.

“We would have an obligation to seek an opinion from that body that is the final arbiter on the constitutionality of the process,” he said.

“Ultimately we would have an opportunity where we feel that the Constitution has not been complied with.”

Two Parliamentary committees tasked with evaluating the nomination of Attorney General, Chief Justice, Director of Public Prosecutions and the Controller of Budget have failed to agree and are divided along party lines. The Committee on Trade and Finance which has been evaluating the nomination of Controller of Budget has presented a majority report calling for fresh nomination process but another faction led by the Vice Chairman has disowned the report and is now expected to table a minority report.

Speaker Kenneth Marende was on Thursday expected to determine whether the nominations have complied with provisions of the Constitution.

However, the High Court has already sanctioned the nominations and declared them unconstitutional.

Mr Nyachae said the commission will soon embark on drafting the Supreme Court Bill that will establish the highest court in the land that will be responsible for interpreting the Constitution.

Until the establishment of the Supreme Court, the Court of Appeal has been mandated to undertake the responsibility.

Mr Nyachae said the commission will soon embark on the Supreme Court Bill that will establish the highest court in the land that will be responsible for interpreting the Constitution.

“If we had the Supreme Court today, much of what we are spending time and energy on will not be there,” he said.

Speaking at the same function three MPs differed on the way forward in addressing the deadlock.

Garsen MP Danson Mungatana insisted that two of the nominees of AG and the Controller of Budget are properly constituted and should therefore go on while that of CJ and DPP requires competitive recruitment.

He said the Constitution is clear that the two should be nominated by the President while for the CJ and DPP the Constitution remains open on the nomination.

MPs Lewis Nguyai and Racheal Shebesh rooted for political settlement to the matter. Mr Nguyai said MPs should work on crossing ranks and avoid a constitutional crisis.

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