MIGUNA MIGUNA} Why Kipkorir is a roadblock on highway of reform

Donald Kipkorir tries to make life miserable and uncertain. Not only is he inconsistent and hypocritical, he is also dangerously deceptive. He not only stretches facts, but also refuses to live by simple rules. His article, "Kibaki nominations constitutional, objections ill-informed and a sham" (Standard on Sunday, February 13) expose him as an intellectual fraud.

On Wednesday February 9th, Kipkorir was a member of the Law Society of Kenya (LSK) team that addressed the Parliamentary Committee on Justice and Legal Affairs. Not only did the LSK team denounce the president’s nominations as unconstitutional, Kipkorir was one of the speakers that catalogued a litany of violations. But barely three days later, Kipkorir emerged with a sharply contradictory opinion.

Based on how Kipkorir truncates the relevant provisions of the Constitution to advance his baseless arguments, it’s obvious he intends to deceive. In citing section 24(2) of the Sixth Schedule, Kipkorir deliberately omits the words "subject to the National Accord and Reconciliation Act" and jumps to "consultation." Kipkorir claims, falsely, the nominations are only pursuant to consultations with the Prime Minister.

That’s a very poor reading of the Constitution. Section 24(2) states that: "A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly."

The section is written in plain English. There are no jargons. There’s a positive command on the President to exercise his power to nominate if he adheres to the National Accord. Upon compliance with the Accord, the President must consult the PM. Once the President has obtained the PM’s consent, he shall forward the names to Parliament for approval. There is a positive duty on the President to ensure all major decisions and appointments are made jointly with the PM.

The words "subject to the National Accord" means no decision can be made unilaterally. The Accord requires power sharing, equal partnership, good faith, constant consultation and willingness to compromise. When constituting the grand coalition Cabinet, the President and the PM acted subject to the Accord by agreeing on equal number of ministers and assistant ministers. The President didn’t appoint ODM ministers for the PM, and vice versa.

If the President was the sole "appointing authority" as Kipkorir falsely argues, why didn’t he disregard the PM and appoint all the ministers alone? Because the President knew then — as he must know now — that this is a coalition government made up of two equal partners.

Kipkorir’s so-called "leverage of appointment" concept is archaic and inapplicable in a coalition arrangement. And, in view of the foregoing, did the President comply with the National Accord? If the answer is "no," then the issue of consultations doesn’t arise.

Section 29 of the Sixth Schedule is explicit on the procedure to be followed in all the new appointments. It is categorical that all appointments during the transition period must be made subject to the National Accord. They must make new appointments jointly out of mutually respectful processes involving good faith discussions, consultation and willingness to compromise. Has the President has exhibited these values?

It is instrumental to remember that the brief preliminary discussions the two principals held over nominations never went beyond the issue of agreeing on the process.

Different treatment

Discussions between the principals’ aides don’t meet the constitutional requirement for consultations. It is also important to recall that the PM never presented any names for discussions, nor has he ever embarrassed the President or caused a crisis by purporting to make unilateral appointments. Why then should the President be allowed to defy the Constitution and the Accord?

In fact, even the so-called technical team was never properly constituted. Although the two principals had given express instructions on the composition of the "technical team," there were no representatives of the Law Reform Commission, the LSK, Judicial Service Commission and Public Service Commission.

There were others like the PS for Justice, Solicitor General and others that participated in the technical team’s discussions but who hadn’t been authorised to be involved.

Accordingly, with no legitimate technical team, there could have been no "discussions" even among the principals’ aides that would meet the constitutional requirements. Moreover, both Constitution and Accord only recognise consultations between the President and the PM. Both sides admit that apart from the two brief preliminary discussions between the two, they never held consultations over this matter. That’s the irrefutable fact.

Ultimately, all executive decisions and appointments must be made jointly by the principals; not their aides. The Constitution entrenched "consultations" as a comprehensive process between the principals. Casual and social discussions between them or between their offices don’t count.

The Constitution doesn’t impose unreasonable deadlines on these consultations. Clearly, the IGAD and AU conferences weren’t contemplated by the Constitution and neither could impede on the powers constitutionally vested on the PM.

What would happen if the PM decides to nominate people for constitutional offices without consulting and obtaining concurrence of the President? What if the PM had unilaterally directed Caroli Omondi to send a list of nominees to Parliament? Would the Speaker have forwarded the list to various House committees for deliberation? Would the House be required to debate them? If not, why is the President’s list being treated differently?

Writer is the PM’s advisor on Coalition Affairs.