Tuesday, February 1, 2011

Serious consultations cannot be done by SMS!


Nobody in Kenya or the entire world can positively affirm that President Mwai Kibaki won the presidential election in 2007. Likewise, no one can positively refute Mr Kibaki’s contention that he won the election. The consensus, however, is that he is not ruling through a popular mandate or will of the people of Kenya. The truth is that his mandate is disputed and strongly contested in certain quarters up to this day.

Like the current Ivorian ruler Laurent Gbagbo, some Kenyans believe that he sat on the throne and refused to budge. When a president has a disputed mandate like Kibaki’s, it is generally accepted and expected that he will not belittle or insult the intelligence of the citizenry. This is because some of them are convinced beyond reasonable doubt that he doesn’t represent the popular mandate of the voters.

It is thus expected that in deference to those who strongly feel that their voters were stolen, such a leader will be a centrist president who rules through a consensus and with an eye for what the majority of the people want. Kibaki may be the leader who could help develop the infrastructure and economy of the country. He may make Kenya redouble its annual tea and coffee production. What he is not is a reformer who thinks about posterity and the true progress of his people. The term reform must leave a bitter taste in his mouth. Whether it is a statute or the constitution, Kibaki has little regard for the law once it stands in his way.

Take his appointments of the Chief Justice, Attorney General and the Director of Public Prosecution. According to Minister James Orengo, the Prime Minister has not been consulted over these appointments. The Sixth Schedule of the Constitution is explicit. It requires the President to nominate individuals for these offices “in consultation with the prime minister”. If it is true that the prime minister has not been consulted, the appointments are invalid abinitio and without any legal effect. It must also be appreciated that “in consultation with the prime minister” must be construed to mean concurrence of the two principals and nothing less.

The quarrel is not about the competence or qualifications of the individuals nominated for the offices. Professor Githu Muigai and lawyer Kioko Kilukumi are, without any doubt, qualified for the jobs and few Kenyans can begrudge their nomination. They also have the necessary background experience to reform the two institutions they are nominated to. The ball is now firmly in Raila’s court. He must come out publicly to rebut or affirm the contention by the president that he appointed the three individuals “in consultation with the prime minister”.

If such consultation occurred, we move to the next stage to interrogate the competence, integrity, character and qualifications of the three officials. If, however, Raila denies that he was consulted in the appointments, the law must take its course. First, it will show that the president has broken the supreme law of the land and is in breach of his oath of office.

Second, and more importantly, the constitutional impeachment of Kibaki could be a distinct possibility. It’s a contravention of the Constitution to unilaterally nominate Chief Justice, Attorney General and DPP. If the prime minister denies any consultation took place with the president, the three nominees must come forward and immediately decline the nominations.

Since Raila has not been consulted, their nomination is of no legal consequence. Parliament, too, can’t discuss these nominees!
Ahmednassir Abdullahi is the Publisher, Nairobi Law Monthly.

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