NAIROBI, Kenya, Feb 21 – Kenya is set to have an acting Chief Justice once the term of Evan Gicheru ends on February 27.
This follows a ruling issued on Monday setting the hearing of an eagerly awaited case challenging President Mwai Kibaki\’s nominations to four constitutional offices for March 2.
The three-judge bench said the matter would be heard on a daily basis.
The Attorney General who is representing the government in the case filed by civil society organisations has complicated the case somewhat, when he voiced an opinion that appeared to support the applicants\’ case.
The AG said the Judicial Service Commission should have been involved in the nomination of the next Chief Justice. He also conceded that there was violation of the Constitution to the extent that out of the four nominations, none was a woman despite the constitutional requirement for gender equality in state jobs.
The government\’s chief legal advisor indicated to the court on Monday morning that his position was unlikely to change during the course of hearing.
Senior State Counsel Wanjiku Mbiyu told the court that the AG had made concessions when the case first came to court that there was some breach of the Constitution.
"On February 3 the Office of the Attorney General made some concessions and I want to assure this court that some position cannot change," Ms Mbiyu said.
President Mwai Kibaki had nominated Court of Appeal Judge Alnashir Visram as the Chief Justice while lawyers Githu Muigai and Kioko Kilukumi were picked as Attorney General and Director of Public Prosecutions respectively.
The President also nominated William Kirwa to the position of the Controller of Budget. But his nominations were rejected by Prime Minister Raila Odinga who claimed that he was not properly consulted before the names were forwarded by the President to the National Assembly as provided in the Constitution.
The PM has already garnered support on this argument since both the High Court and the Speaker of the National Assembly Kenneth Marende have said the President\’s actions were unconstitutional.
Earlier on Monday, the Attorney General had asked the court to expedite the case because the tenure of the current CJ was coming to an end in seven days.
"In view of the gravity of the matter the AG is of the view that this matter be heard immediately. We are filing our responses in the next two hours and serve the applicants and the interested parties," Ms Mbiyu added.
One of the lawyers representing the interested parties Haroun Ndubi however opposed to the Attorney General\’s position.
Mr Ndubi told Justices Kalpana Rawal, George Dulu and Luka Kimaru that they need at least one week to respond to the Attorney General\’s argument. He said the court should allow the matter to take normal course instead of hurrying it.
"The urgency should not be imposed on the High Court. This matter should take ordinary course of action like any other constitutional case," Mr Ndubi told the court.
His sentiments were echoed by Law Society of Kenya\’s lawyer Dr John Khaminwa who urged the court to give the parties time to ventilate the grave constitutional issues raised in the petition.
Already, the court has allowed 20 more interested parties to join the high-profile case. Among those allowed to the case as interested parties are the Orange Democratic Movement, the International Commission of Jurists (Kenyan Chapter) and the Law Society of Kenya.
Also allowed to be amicus curie (Friend of the Court) is former Constitution of Kenya Review Commission Chairman Yash Pal Ghai.
The court has now directed the Attorney General and the Party of National Unity to file and serve their responses by the end of Monday. All the eight women organisations who filed the petition and all the interested parties have been ordered to file their papers within seven days. The interested parties have been directed to indicate whether they support or oppose the petition.
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