, NAIROBI, Kenya, Feb 3 – The High Court will on Thursday determine whether President Mwai Kibaki breached the constitution in nominating individuals to the Offices of the Chief Justice, the Attorney General and the Director of Public Prosecutions.
A group of Non-Government Organisations that mainly advance the rights of women had moved to court claiming that the nominations of Justice Alnashir Visram as Chief Justice, Prof Githu Muigai for AG, Kioko Kilukumi DPP and William Kirwa as Controller of Budget were unconstitutional as they ignored gender equality.
"The said nominations are prima facie unconstitutional for being insensitive to gender equality and equal opportunity provisions as well as provisions on consultations and public participation as guaranteed by the Constitution," their lawyer Elisha Ongoya told the High Court.
He told the court to put halt the President\’s move as it negated the spirit and letter of the Constitution.
"The nominations set a dangerous precedent and stand out as dangerous rodents eating at the very roots of constitutionalism and the rule of law that ought to be safeguarded by the Constitution of Kenya," Mr Ongoya told High Court judge Daniel Musinga.
The eight applicants include the Centre for Rights Education and Awareness (CREAW), Caucus for Women\’s Leadership (CAUCUS), Tomorrow Child Initiative (TCI) and Women in Law and Development (K).
Others are Development Through Media (DTM), Coalition on Violence Against Women (COVAW), Young Women Leadership Institute (YWLI) and the League of Kenya Women Voters.
In their petition, the applicants claim that the nominations were done without advertisement and members of the public who ought to have participated were kept in the dark.
They claim that under Article 10(2) (a) that guarantees the Rule of Law as one of the National Values and Principles that bind all state officers, public officers and all persons whenever they apply or interpret the Constitution and in line with these provisions, they have the right to challenge the said nominations.
"There is real and present danger that unless halted, other organs of state like the National Assembly may be buoyed by the President\’s unconstitutional acts and approve the same hence set in motion foundations of blatant disregard for the Constitution," the lawyer said.
But Senior State Counsel Anthony Ombwayo and Wanjiku Mbiyu sought for adjournment of the hearing of the matter saying they needed to get instructions from the Office of the President.
Justice Musinga allowed the AG\’s officers time to seek instructions but said he would issue judgement on the matter on Thursday.
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