MPs go for crisis talks on vetting of CJ

By Martin Mutua and Lucianne Limo

MPs will on Thursday hold an emergency meeting to try and resolve clashing political interests in the Justice and Legal Affairs Committee that threaten the implementation of the Constitution.

The meeting will follow the annual Prayer Breakfast, which President Kibaki will attend at Safari Park Hotel, Nairobi.

House Speaker Kenneth Marende will on Thursday convene the informal meeting known as the ‘Speaker’s Kamukunji’, hoping MPs will use the forum to resolve the long-standing dispute.

On Wednesday evening The Standard was reliably informed that the setting up of an ad hoc committee to vet the Chief Justice, Deputy Chief Justice, and Director of Public Prosecution nominees would be the main agenda at the Speaker’s meeting.

Earlier this week, Marende met President Kibaki and Prime Minister Raila Odinga to try to find a solution to the wrangling in the committee, which has stalled the appointments of the three nominees.

Sources told The Standard that Marende made his position known to the two on the matter, asking them to resolve the impasse since it was a political problem under the Grand Coalition Government.

"It is true the Speaker met the two principals and made his position known that they must show leadership in this matter, as it has nothing to do with procedures in Parliament," added the sources.

Sources confirmed to The Standard the House Business Committee (HBC), met on Tuesday evening to come up with options on the way forward, and ensure the names are brought to the floor of the House and passed without further delay.

One source in the House Business Committee said most MPs want the committee disbanded and reconstituted to reflect the dynamics of the Grand Coalition partners, PNU and ODM.

"Since this is not the only appointments they are going to look at, we need to sort out the problem of the committee once and for all, as opposed to finding a temporary solution, which will then return to haunt us very soon," added a source in the HBC who preferred anonymity.

But sources who attended the HBC told The Standard the issue was a subject of exchanges between members of ODM in the HBC allied to Prime Minister Raila Odinga, led by Medical Services Minister Anyang’ Nyong’o, and those of PNU led by Deputy Prime Minister Uhuru Kenyatta, supported by ODM MPs allied to Eldoret North MP William Ruto.

On Wednesday, the Committee for the Implementation of the Constitution (CIC) Chairman, Charles Nyachae, raised concern the wrangling is interfering with passage of crucial Bills in Parliament.

"It is a concern to us that the delay in the implementation of the Constitution is caused by Parliament, yet they are charged with fast tracking the Bills," observed Nyachae.

Replacement of chairman

A Cabinet Minister from ODM said the party would have been comfortable with the replacement of Ababu Namwamba as chairman of the committee with another loyal MP, most notably Olago-Aluoch but not rebels linked to Ruto and PNU.

"You can recall that ODM withdrew its membership from the committee, and as we stand now the committee does not exist, therefore that proposal is not feasible," a top ODM minister who preferred anonymity told The Standard.

The minister further said the only option the party will accept is to disband the committee and have it reconstituted, so that they can equally share the positions with PNU, and not with a "coalition of impunity".

MPs from PNU on the committee have in the past accused the Speaker of protecting Namwamba after they allegedly passed a vote of no confidence in him. The danger is that the country could be headed for a constitutional crisis if the impasse is not unlocked.

The Constitution creates the Supreme Court, which should be in place by August, with the Chief Justice as president, and his deputy and five other judges constituting the Bench.

Supreme Court Bill

The Supreme Court Bill 2011 landed in Parliament on Wednesday and went through its first reading. Justice Minister Mutula Kilonzo successfully moved a Motion to reduce its publication period from 14 days, as demanded by Parliament’s Standing Orders, to five.

Seconding the Motion to reduce the publication period, Attorney General Amos Wako said the interviews for judges of the Supreme Court begin next week.

Wako said it was critical the Bill be expedited so that the court can be established before the interviews and the picking of the judges is concluded.

The Bill has since been committed to the troubled committee for scrutiny. Expectations were that the Chief Justice and his deputy could have now been endorsed, before the Judicial Service Commission (JSC) begins the process of picking seven judges of the Supreme Court.

The JSC has already short-listed 26 names of 56 applicants. Justice Philip Waki will be the first to be interviewed on June 6. Eight of the short listed judges had earlier been interviewed for the post of Chief Justice and deputy.

They are Court of Appeal judges Riaga Omolo, Alnashir Visram, Joseph Nyamu and High Court’s Hanna Okwengu, Mary Ang’awa, Msagha Mbogoli, Kalpana Rawal and Martha Koome. They will be interviewed again for the Supreme Court positions.

Also in the list are former nominated MP Njoki Ndung’u, Lady Justice (Rtd) Violet Mavisi who headed the Independent Constitutional Resolution Court, James Odek, Smokin Wanjala, Kathurima M’Inoti, Phoebe Okowa, Anthony Adera and Wilfred Nderitu.

Prominent applicants not short listed include Court of Appeal judge, Justice Samuel Bosire, immediate former Kenya Anti-Corruption Commission director Aaron Ringera, retired judge Schofield Derek, current KACC assistant director Pravin Bowry, and long serving chief magistrate Unita Kidula.

Last week Marende gave a timeline to have the names brought to the House by Thursday, for deliberation and approval.

Potential crisis

Another option that has been mentioned is bringing members of the committee together and allowing a change of guard in the position of chair by replacing Ababu with Kisumu Town West MP Olago-Aluoch.

The committee was expected to have scrutinised the names of CJ, Deputy CJ, and DPP and hand over their recommendations to Parliament by May 25.

He raised concern that the JSC, which should be headed by the Chief Justice, continues to operate without a substantive chair.

"This is a potential crisis since the JSC are supposed to begin interviewing 26 judges to the Supreme Court on June 6, yet Parliament has not approved the nomination of the CJ and his deputy," he said.