Kibaki, Raila aides spill the beans on nominations

Business

BY ALEX NDEGWA

President Kibaki and Prime Minister Raila Odinga overruled recommendation by their aides that four key constitutional offices be filled through a competitive process. The two sides spilt the beans during appearance on behalf of their principals before the House Finance Committee yesterday in Parliament. However, the two sides nonetheless stuck to the conflicting positions their principals have taken.

The revelations now paint a different picture of what transpired between Kibaki and Raila in relation to nominations to the top jobs, which have created a rift in the Grand Coalition, and over which the two principals deadlocked again on Monday.

It is now emerging the two leaders who have since surrendered resolution of the impasse to the parliamentary committees worked closely on plans to fill the offices at the initial stages before the differences set in. It was far much later that they overruled the technical teams they had selected to advise them on the nominations.

A technical team comprising of the two principals’ confidantes had recommended the posts, including that of Chief Justice, which Raila is contesting, be advertised to attract suitable candidates. Though both parties concurred the process would have been competitive were it not that the two trashed the idea. The Raila side now says it was ambushed, and the process used by the President was unilateral and unconstitutional.

The two teams had actually drawn up the qualifications necessary for the office of CJ and had even prepared a draft Kenya Gazette Notice before Kibaki and Raila stopped them.

The Head of the Civil Service and Secretary led the President’s side to Cabinet, Francis Muthaura, and two of Kibaki’s top aides based at Harambee House —Nick Wanjohi and Kivutha Kibwana.

Raila was represented his Chief of Staff Caroli Omondi and his advisor on constitutional affairs Miguna Miguna, and lawyer Mugambi Imanyara.

The other posts the aides wanted advertised were that of Director of Public Prosecutions (DPP) and Controller of Budget.

The revelation of how Kibaki and Raila blocked their proposal was made by Muthaura and corroborated by Omondi when they testified before a parliamentary committee tasked with investigating the constitutionality of the nominations by House Speaker Kenneth Marende last Thursday.

While the President’s team wanted the process to continue to the next stage for Parliament to consider, the PM’s team was emphatic the nominations were unconstitutional. Muthaura said consultations occurred but talks deadlocked on January 27 on the post of CJ because the President preferred Justice Kihara Kariuki, but the PM wanted Justice Riaga Omollo.

Head of Public Service and Secretary to the Cabinet Francis Muthaura (foreground) after he appeared before the House Finance Committee on Tuesday. [PHOTO: MBUGUA KIBERA/STANDARD]

But Omondi told the committee the President ambushed the PM with a list of nominees. He argued the best way was to advertise the positions of the CJ, and Deputy CJ to make the process open.

Muthaura said their proposal to advertise the jobs was studied by Kibaki and the PM during a consultative meeting on January 6, whose top agenda, he added, included, "fast tracking appointments necessary to establish a local mechanism for the trial of post-election violence suspects".

But, according to Muthaura, the two principals changed their minds after a presentation on the legal process guiding the nominations, made by Prof Kibwana who suggested the Constitution allowed the President and PM to make direct nominations while filling independent, constitutional offices.

He said they were convinced appointments to the posts of CJ, DPP, and Controller of Budget did not require to go through either the Public Service Commission or Judicial Service Commission.

"They both agreed we should not advertise the posts. Instead they opted to consult between themselves and present the list of nominees," Muthaura added.

Nambale MP Chris Okemo chairs Finance Committee. The committee — alongside that on Justice — is expected to investigate the impasse.

During a hearing on one of the controversial nominations — that of William Kirwa as Controller of Budget — Muthaura said his name had been picked from applications submitted during the recruitment of the commissioners for Commission on Revenue Allocation.

Asked if they were aware the nominee was subject of a parliamentary investigation, Muthaura responded no and explained Director General of National Security Intelligence Service had cleared him.

But when it was the turn of PM’s team to make its submissions, the only thing the rival groups were agreed on was the existence of their proposal to have the jobs advertised. The copy of the draft gazette notice had resurfaced during an earlier session with the civil society.

International Commission of Jurists (ICJ) counsel Priscilla Nyokabi presented the document dated December 14, last year. It outlines the qualifications for one to be considered for CJ. She disclosed the document originated from Kenya Law Reform Commission. Muthaura alluded they had put together a ‘Gazette Notice’.

The Government had pledged to Parliament during a retreat on constitutional reforms last year that all new appointments, including that of CJ, AG, DPP and Inspector General of the Police, would be advertised.

When shown the copy of the gazette notice, Omondi confirmed it had featured in one of the meetings. But he explained the meeting of January 6 had agreed on the establishment of a panel to resolve the issue.

Omondi referred to an expanded panel whose membership included representatives of professional bodies besides the four officials from OP and PM’s office.

The other representatives were to be from the Law Society of Kenya, JSC and the Kenya Law Reform Commission.But Omondi disowned existence of any minutes of the meeting Muthaura tabled.

He said the expanded panel was to take the responsibility of floating adverts and sourcing for the right people for the offices.

But Omondi said they abandoned the other bodies after they realised their representatives were not present at a meeting they were expected.

Miguna rubbished the legal opinion on the nomination process given by Kibwana, saying, "It was not worth the paper it was written on." He added the Attorney General, who is the Government principal legal adviser, was party to the JSC statement, which condemned the President’s nominations as unconstitutional.

Kibwana told the committee there were two streams of offices: Independent and Constitutional offices, which could be filled by the Executive through direct nominations, and other regular Civil Service jobs that fell under the Public Service Commission.

"The upshot is that one has to distinguish between the independent offices and commissions and other regular offices under the Public Service Commission," argued Kibwana.

But Okemo put the President’s team to task why the jobs could not have been advertised to afford equal opportunity to all.

"Have they acted in public interest by sitting in the office to come up with names without public participation?" asked Okemo

But Muthaura responded the President and PM command popular mandate that "symbolises" the public interest.

"The next stage of the process is vetting of the nominees by Parliament, which is the epitome of public interest," he added.

"It would have been neater if they had agreed on the full list. In the future they should as much as possible agree to save the people this pain," Muthaura replied.

"It is intriguing for anybody to imagine the two leaders are not representative of the public interest," Muthaura argued.

 

 

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