Circus goes on: Committees fail to find consensus

By Alex Ndegwa

Parliament could turn into a theatre of the absurd after fresh disagreements emerged in two House Committees scrutinising the contested nominations to four key constitutional offices.

The differences between members of the committees of Finance and Justice and Legal Affairs appeared to compromise the reports already prepared, with the first coming up with two contradictory versions and members of the second disowning one tabled by their chairman on Tuesday.

But the only common denominator in the recommendation by the two House Committees, albeit for different reasons, was that of returning Justice Alnashir Visram’s nomination for Chief Justice to the principals.

The Party of National Unity wing of the committee, alongside Rift MPs, recommended that the Attorney General nominee, Prof Githu Muigai and that of Director of Public Prosecutions, Mr Kioko Kilukumi, proceed to the vetting stage immediately, arguing their nomination was constitutional. They likewise argued Visram’s fell within the law as there were ‘adequate consultations’, but recommended returning it to the two principals, President Kibaki and Prime Minister Raila Odinga because of the furore it had raised, and the need to protect the credibility of the office of the CJ.

The other side, made up of three Orange Democratic Movement MPs argued the entire process lacked "legitimacy and credibility" and the entire list should be returned to the two principals.

In both committees, the clash-point and friction area remained whether list presented Parliament by the President, and contested by the PM, was constitutional, or should be returned either in full or in part to the principals to ‘consult afresh’.

The disagreements were dramatically shaped by the members’ allegiance to the two principals more than the principle of law, and betrayed the mandate they were handed over by Marende last week to try examine if the list was properly before the House.

Returned to principals

Members of the Justice Committee split into those who want the entire list of judicial nominees returned to the principals, and those who want only the Chief Justice renegotiated. Those who wrote a dissenting opinion insisting the entire process was flawed, and that the list should be thrown out altogether, comically included Chairman Ababu Namwamba on whose shoulders lay the burden of tabling it before the House.

Over at the Finance Committee, five members called a news conference to claim the report, which recommends the return of Controller of Budget nominee Mr William Kirwa back to the principals, was ‘doctored’.

Deputy Prime Minister Musalia Mudavadi (left) accompanied by ODM MPs Ben Washiali (Mumias), Manyala Keya (Lurambi), and Justus Kizito Mugali (Shinyalu) in a discussion outside the Parliament buildings Wednesday. [PHOTO: ANDREW KILONZI/STANDARD]

But interestingly, two other members sat through their news conference and took their seats before the cameras when the five left, and then claimed their dissatisfied colleagues only changed their minds after a meeting at the home of Deputy Prime Minister Uhuru Kenyatta on Tuesday evening.

They went further to claim their colleagues were compromised, but offered no evidence, even though they revealed one of them, Prof Phillip Kaloki, who is the Vice Chairman, moved the motion for the confirmation of the minutes in their meetings. Mr Jakoyo Midiwo (Gem, ODM) and Mr Nkoidilla ole Lankas (Narok South, ODM) also questioned why the Kaloki group did not raise an objection when their chairman Mr Chris Okemo (Nambale, ODM) tabled the list.

The differences between the members of the two committees is expected to surface during debate in Parliament today, and it is predictable the whole House could be guided in accepting or rejecting the reports on the basis of how they individually relate to the two principals — not the legal basis that was expected to be their compass.

Ababu will table the contested report today, after failing to do so yesterday following rejection by the Deputy Speaker Mr Farah Maalim. Eight of its members voted for the acceptance of the AG and DPP nominees and rejection of the CJ nominee. Those who took the opposite view were Kisumu Town West MP Olago Aluoch (ODM), Nominated MP Millie Odhiambo (ODM) and Ababu (ODM). They argued they did so as a matter of "principle and conscience".

"It is important to note right from the outset that this essentially is a "two-in-one" report...each decision was put to a vote," declared report.

They added: "And so the verdict of the Committee on this matter represents two diametrically opposite positions: one that believes the nominations were constitutional, and the other that is strong in conviction that all the nominations not only violated the Constitution, but indeed places the very survival of the new order at grave risk."

Was constitutional

The main report argues CJ nomination was constitutional and accordance to Section 24(2) and Section 29 of the Sixth schedule. These are transitional provisions on appointments before next General Election.

But because of the heat Visram’s nomination has generated, they went on: "We recommend the re-processing of this nomination through the Judicial Service Commission." This is the body the President had been accused by human rights and professional groups of sidestepping.

The dissenters also argued there was no gender and regional balance, which contravened of Article 27 of the Constitution. They added that while the AG and DPP were part of the Executive, they were institutions in the Public Service and must also enjoy a high degree of credibility and legitimacy.

"It therefore follows that if one were to question the credibility of one institution, one cannot avoid raising credibility over the other institution," they went on.

Sources told The Standard the vetting of Prof Muigai and Kilukumi is planned for next week. The dissenters argued like the Okemo team on Tuesday that, "there should be should be a threshold and structured guidelines set to manage the process of consultation within the Grand Coalition Government." The dissenters also argued the rush by the President was fuelled by the need to present to the African Union the picture of a country which had completed reforming the Judiciary as part of the strategy to win its support for deferral of Kenya’s ICC cases. The two sides were, however, split on whether consultations between the President and PM must end in concurrence.

Wednesday evening a controversy arose on the layout of the "harmonised" report with those supporting the view the President’s actions were within the law agitated that the dissenting views were placed just a page to the recommendations of the report.