The row gets murk

By ALEX NDEGWA and FRANCIS NGIGE

With barely seven days before Chief Justice Evan Gicheru exits office, all eyes will again this week focus on another bruising battle in Parliament.

And all indications are that the battle for supremacy in the Grand Coalition will get murkier as the President’s party PNU and Prime Minister Raila Odinga’s ODM spoil for war.

MPs allied to President Kibaki have warned the raging political storm over the controversial nominations to four constitutional offices will this week ky implode into a crisis of monumental proportion.

After President Kibaki declared his nominations were "within my constitutional mandate", his allies’ first priority on Tuesday is to challenge Speaker Kenneth Marende’s ruling.

Deputy Prime Minister Uhuru Kenyatta (centre) with Kirinyaga Central MP-elect Joseph Gitari (left) and Nairobi Metropolitan Minister Njeru Githae at Kamuiru Boys high School where they went to thank the constituents for voting for Gitari last week. [PHOTO/GEORGE MULALA/

The game plan revealed by Energy Minister Kiraitu Murungi is to quash the Speaker’s ruling so as to revive and sanction debate on the two parliamentary reports, which were frozen after Marende’s edict that the President’s nominations were unconstitutional.

Should that succeed, the tug team of PNU and rebel ODM MPs is confident to endorse the report by the Justice and Legal Affairs committee — whose majority members cleared the President’s list — and deal with the ‘unfriendly’ one by the Finance committee, already disowned by five of its members.

A vote of no confidence against the Speaker had initially been floated, but it is emerging the group could abandon it given the high threshold of 75 per cent — or 167 members — required to remove Marende from office.

Moderates within the camp are said to caution that targeting the Speaker could boomerang at a time his actions seem to resonate with the public.

Competitive process

But Gichugu MP Martha Karua says: "Kibaki is reading the Constitution selectively, because it is like reading the concluding paragraph of a letter and assuming that you have understood the document in totality."

She said the nominations must be done through a competitive process that will encompass the national values in Article 10 and Article 166, which includes the vetting of nominees by the Judicial Service Commission (JSC).

The avid debater said the President’s statement amounted to threatening the Speaker and it is something that is unacceptable.

Karua demanded that the dispute be handled by the Court of Appeal because one of those entrusted with the job recently made a controversial ruling on the Kenya Anti-Corruption Commission case.

Justice Minister Mutula Kilonzo also rubbished the move to censure Marende.

He said: "Why seek to punish the Speaker when all he did was to step in and settle a deadlock created by President Kibaki and Prime Minister Raila Odinga.

"It is ridiculous to pass a vote of no confidence in the Speaker because he has never been mentioned in any scandal like Goldenberg, Anglo Leasing or even post elections violence."

But the President’s allies are now viewing Raila as the "softer target" citing provisions of the National Accord and Reconciliation Act that a no confidence vote to remove the Premier from office suffices if it’s supported by a majority of members.

That majority, according to the thinking in the President’s camp, is 50 per cent plus one vote, which translates to 112 MPs.

This could be part of a wider scheme that could involve the President’s party collapsing the coalition altogether.

PNU is due to hold a meeting of its top decision-making organ — the National Delegates Conference — on March 11 to discuss the possibility of the party pulling out of the coalition.

The Prime Minister’s side argues that removing him will not be that simple because on record ODM still has over 100 MPs in Parliament and therefore the majority as provided for in the national accord.

Constitutional crisis

According to the National Accord one of the grounds for dissolution of the coalition is if one coalition partner withdraws from the coalition by a resolution of the highest decision-making organ of that party in writing.

Vice-President Kalonzo Musyoka on Friday said Parliament would debate the ruling by the Speaker and "may even overturn it".

Deputy Prime Minister Uhuru Kenyatta and Cabinet Minister Njeru Githae on Saturday also said PNU will push for the retention of Chief Justice Gicheru until his successor is found, a move that is likely to stoke the embers of the controversy surrounding the nominations.

Castigating Marende, Uhuru, Githae and Assistant Minister Adan Duale vowed to have the Speaker’s ruling overturned.

At the same time, Uhuru claimed that there was an attempt by Raila to create a constitutional crisis "so that one of their own can assume the seat."

Dirty manoeuvres

Uhuru claimed Raila was arrogating himself Presidential powers of trying to appoint constitutional office holders.

"The President is the Head of State and Government and has powers to appoint but what we are seeing is as if what Raila wants to be considered is not followed then it’s unlawful," said Uhuru.

"We know the games they are playing to ensure that by February 27 we don’t have a new Chief Justice, so that the one they have in mind assumes office," said Uhuru.

Uhuru who spoke in Kirinyaga Central during an impromptu rally to thank the voters for electing a PNU candidate said the "dirty manoeuvres by some politicians would not succeed."

"Just as they are saying that Judicial Service Commission should vet the CJ appointment, then Gicheru’s exit should also be hinged on the same legislation where a tribunal should be formed to start the removal procedure," said Uhuru.

He added: "These people are trying to play dirty games and create unnecessary anxiety among Kenyans. They want to create an artificial constitutional crisis to ensure that one of their own takes the helm as CJ."

The PNU MPs say there is a precedent in challenging the Speaker’s ruling, citing an instance in 1996 when then Ford-Kenya MP James Orengo contested one by then Speaker Francis Kaparo.

Asked how they expected Marende to sanction a Motion challenging his ruling, an MP privy to the plans said they expect the Speaker to exempt himself in accordance to rules on declaring interest and hand over the matter to either the Deputy Speaker or a member of the Speaker’s panel.

One of the grounds for contesting Marende’s directive, which one of PNU’s vice chairman Jamleck Kamau cited, is that the Speaker’s ruling went 10 minutes past normal parliamentary hours (6.30pm) without prior approval through a motion for the extension of time.

Standing orders

But The Standard on Sunday has learnt the Speaker has a provision in the Standing Orders to fall back to.

On hours of meeting, Standing Order 20(4) states:

"If at the time appointed for the interruption of business, any division is in progress, or a question is being put from the Chair and a division results immediately thereon, such interruption shall be deferred until after the declaration of the numbers and the result of the division."

That means that he can continue transacting business as long as he is on his feet.