Lawyers insist Kibaki action broke the law

By Mutinda Mwanzia

The legal fraternity has faulted President Kibaki over the recent nomination of four individuals to key constitutional offices.

Law Society of Kenya, Fida-Kenya, and the International Commission of Jurists said President Kibaki should have adhered to the Constitution and the National Accord by consulting PM Raila Odinga.

"Assertions by Raila that he was not consulted are grave. The President is required by Section 24 of Schedule 6 on transition provisions to consult with the PM in the appointment of the Chief Justice," said ICJ Executive Director George Kegoro.

"It should not be forgotten that the election of President Kibaki in 2007 could not be ascertained and led to the formation of a coalition government. The principals are equal partners in the governance," said Kegoro.

The lawyers said the nominations contravene the spirit and letter of the Constitution and were thus unconstitutional.

President Kibaki kicked a storm when he nominated Justice Alnashir Visram to the Chief Justice position, Prof Githu Muigai as Attorney General and Kioko Kilukumi as Director of Public Prosecutions. And yesterday, Kegoro, Fida chairperson Naomi Wagereka and LSK council members Renee Omondi and Ochieng’ Opiyo urged Parliament not to discuss the nominees, adding the Prime Minister and President Kibaki should restart the process.

"They should ensure the entire requisite persons and institutions are involved in the nomination process," said Omondi.

She added all persons nominated should renounce the appointment, terming them unconstitutional.

Due process

Omondi said the legal fraternity will oppose any attempts to impose the nominations without following due process.

The lawyers were addressing a news conference outside the High Court in Nairobi and said the process ought to have been competitive, transparent and open. "The public ought to have been informed of every step in the nomination process. Constitutional offices are not to be filled behind closed doors for the benefit of a few," said Kegoro.

He said the President ought to have involved the Judicial Service Commission (JSC), adding the Constitution gives the commission a key role in identifying the qualified persons for the position of Chief Justice.

"The Constitution requires the JSC be involved in the appointment of the CJ," said Kegoro.