Marende dilemma over state appointments

By Martin Mutua and David Ochami

Speaker Kenneth Marende rules this afternoon on the standoff in the Grand Coalition over nominations to constitutional offices, which may be the most serious test yet for the Kibaki-Raila alliance.

Hours to the ruling, which could shake the pillars of the Grand Coalition, from which some Party of National Unity MPs are contemplating withdrawing, questions were being asked on the dilemma disagreement between the two principals has handed Marende.

The popular opinion was Marende might resort to a ‘Solomonic judgement’, which will take something literally from the two contestants. This way, it is believed he may rule only the Chief Justice’s nomination was contested and throw it back to Kibaki and Raila to consult further.

It is also possible Marende may choose to close the eye to the political implications of his ruling, anchor himself in law, and rule the entire process was flawed since one of the two principals says so, and rule only a fresh beginning would disentangle the mess.

But one thing is clear: Marende has ruled the dispute is within his jurisdiction, and Kenyans recall there is a precedent when the Prime Minister disputed the President’s appointment of Vice-President Kalonzo Musyoka as Leader of Government Business. Marende ruled the President acted outside the National Accord and Reconciliation Act 2008, and blocked his choice from serving in the position until they reached consensus.

Threats of impeachment

The high-stakes row between the President and the Prime Minister was discernible in Marende’s concession last evening he indeed received threats of impeachment should he rule in a certain way.

To this end, and for fear of the threats, which Marende reveals came through second parties, may either blur the ruling or cost Marende his job. The International Commission of Jurists wrote to the President and the PM on the matter.

ICJ (Kenya) Chapter Executive Director George Kegoro said the jurists had been informed the Speaker had been threatened with impeachment should his ruling not be in accordance with the expectations of one side of the political divide.

"Unfortunately the threats to the Speaker are a continuation of an intolerant political stand since the announcement last December by the ICC of the names of six individuals against whom the court has applied for summonses," said Mr Kegoro, in the letter copied to the Speaker.

House Speaker Kenneth Marende rules on Kibaki and Raila standoff today but concedes he has received threats.

But when contacted Marende said he has not received threats directly, but through third parties. "In my view those would be veiled threats," he explained.

"As President and Prime Minister of Kenya, you are in a strong position to prevail on your followers to exercise restraint for the sake of Kenya, which remains bigger than all of us, " Kegoro told the two principals.

He added: "Your statesmanship is needed if Kenya is to avoid slipping back into the large scale instability we are recovering from."

In Mombasa human rights activists filed a case to stop the nomination of all the four nominees to the offices of Chief Justice (Justice Alnashir Visram), Attorney General (Githu Muigai), Director of Public Prosecutions (Kioko Kilukumi) and Controller of Budget (William Kirwa).

They also sought nullification of reappointment of National Security Intelligence Director Michael Gichangi, who Kibaki unilaterally reappointed last month. The groups led by Muslim Human Rights and International Centre for Policy and Conflict want Justice Mohamed Ibrahim to block Parliament from debating the names and in case MPs pass them, block their publication.

Justice Ibrahim said the case would be heard on February 10.

As Marende settles in his chair to read out the ruling, whose writing he worked on yesterday, and is expected to finish this morning, it is certain he will try to walk the tight rope and avoid inflaming political passions.

Underpin in law

He is, however, expected to, at the same time, be firm and underpin his statement in law and precedent.

But he still would have to appreciate he was first elected as an ODM MP and if mishandled the ruling could be dismissed as coached in favour of his former parliamentary sponsor.

It is unlikely the Speaker, who is fast becoming the stabilising factor in the divided House and troubled coalition, would avoid a ruling that could inflame passions within the Grand Coalition. It would also be in Marende’s interest to give a ruling that would shield him from becoming a target in the coalition wars.

But, whichever way he rules, there is bound to be an outcry. His consolation lies in the fact that basing his ruling on the Constitution and prosecuting his case eloquently, could silence his critics and win him further support.

Recalls nominee

One option, it was reported yesterday, came from Commission for the Implementation of the Constitution, which met the President on Tuesday and proposed he recalls his CJ nominee. Raila, however, insisted on Tuesday he would want the nominees picked through a competitive process that starts with public advertisements.

CIC team met Kibaki a day after criticising the nominations. There were conflicting reports over what transpired at the meeting. Some accounts said the members asked him to recall the nomination for CJ only.

But CIC chairman Charles Nyachae told The Standard they told the President the law must followed in nominations to constitutional offices.

The falling out over the nominations have rocked the coalition with a hard line faction within Kibaki’s PNU threatening it wants to withdraw from coalition with ODM.

PNU MPs and ministers were meeting as we went to press last night. ODM had also called a strategy meeting today on the stalemate.

On Monday the Head of Civil Service and Secretary to the Cabinet Francis Muthaura sent the names of Kibaki’s four nominees to Marende.

Another letter from the PM dwelt on unconstitutionality of the President’s action, and sought to have the process be undertaken by Judicial Service Commission, which has also criticised the nominations.

Law Society of Kenya Secretary Apollo Mboya argued the Speaker must reject the names.

"The process must start afresh, be all-inclusive and have the participation of the JSC, CIC, LSK and the two principals to consult only after public participation and gender consideration."