, NAIROBI, Kenya, Feb 17 – The Speaker of the National Assembly Kenneth Marende on Thursday declared the controversial nominations of four key judicial office holders by President Mwai Kibaki unconstitutional.
Mr Marende ruled that President Kibaki did not not carry out consultations with Prime Minister Raila Odinga as required by the Constitution and the National Accord in nominating the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget.
“It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its committees or by a vote on a motion in the House,” he said.
The Speaker has now asked President Kibaki and Mr Odinga to come up with a new list of nominees to the crucial constitutional offices.
“Appointments are required to be made by the President according to the National Accord in consultations with the PM and approval of the National Assembly,” the Speaker ruled.
Mr Marende also blocked the National Assembly from proceeding with any Motion or debate on the current nominees until proper consultations are done.
“This House shall not proceed with any process of approval in respect of the nominations that the National Assembly received from his Excellency the President by the letter dated January 31.”
The ruling was met with hostility by PNU MPs led by Cabinet Minister Uhuru Kenyatta and Kiraitu Murungi who called a press conference outside Parliament buildings immediately the House adjourned.
“We will definitely be seeking a review of the ruling,” said Mr Kenyatta.
“You have all seen what has happened in that House and that is what we are going to contest, it was not a fair ruling,” said Mr Murungi.
But ODM MPs led by Millie Odhiambo and Rachael Shebesh welcomed the ruling saying it would jumpstart the stalled nomination process.
“These MPs are not sincere and all what they want is to derail the implementation of the new Constituion,” said Mrs Shebesh.
Nairobi lawyer Evans Monari said the ruling by Mr Marende has now put the country into a Constitutional crisis.
President Kibaki had nominated Justice Alnashir Visram as CJ, Prof Githu Muigai as Attorney General, Kioko Kilukumi as DPP and William Kirwa as Controller of Budget but this was contested by Mr Odinga who claimed there were no exhaustive consultations.
The names have faced opposition with eight non-governmental organisations securing orders blocking appointment of the proposed individuals.
In his ruling Justice Daniel Musinga declared that the President breached the Constitution and said no State organ should process the names.
The PM had accused the President of making the nominations unilaterally while the President has maintained "sufficient consultations" took place. While the President sent the controversial list of names to Parliament the, PM sent a counter protest letter saying he was not consulted.
The Committee on Justice and Legal Affairs evaluated the three judicial nominees while the Committee on Trade and Finance evaluated the nomination of Mr Kirwa.
Mr Marende referred the matter to the two departmental committees with a mandate to evaluate whether the Constitution was followed. Both committees later filed reports with dissenting voices.
In the ruling on Thursday however Mr Marende said that the constitutionality of the nominations centre around whether the President and the PM consulted saying the National Accord is anchored in the Constitution and provides for real power sharing.
The Constitutional Court was due to hear the petition by the women organizations on Monday and Tuesday.
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