President Kibaki's nominations still continue to excite comment in the national press. Donald B Kipkorir, in the Standard on Sunday, makes the point that that President acted under the terms of the National Accord, embedded in the former Constitution as the National Accord and Reconciliation Act of 2008 (Kibaki nominations constitutional, objections ill-informed and a sham). There are those who have made the rather fallacious proposition that the National Accord is not a law 'made by Parliament', but rather a contract between President Kibaki and Prime Minister Odinga and, therefore, it cannot be amended without taking into account the special circumstances of the post-2007 elections and the violence that necessitated the National Accord.
First, let us deal with the question of whether the Accord can be amended. It can. Under the provisions of the Transitional Clauses in the new Constitution, the National Accord and Reconciliation Act, which was embedded in the former Constitution, continues to form a part of the Law of Kenya. It is, as has been amply demonstrated by the two Principals, still used to make appointments to national offices before the 2012 general elections. It was embedded in the former Constitution by an Act of Parliament, the Constitution of Kenya (Amendment) Act of 2008, which was passed by the National Assembly to give life to the coalition government.
Article 94 defines the role of Parliament under the Constitution, and exclusively reserves the right to make law to the legislative branch of government. The Judiciary shall not 'make law', but shall 'develop law' when addressing the question of the enforcement of the Bill of Rights. Therefore, it is not correct to presume that Parliament does not have the authority or the power to amend the National Accord. It is part of the Constitution and thus, under the provisions on constitutional amendment in Chapter 16, Parliament can amend the National Accord. Without Parliament, the coalition government would not exist. Whether it chooses to do so is a political, and not legal, matter.
Secondly, Mr. Kipkorir makes a rather startling statement in his article. He claims that "democracies have in their wisdom given heads of government and State this leverage of appointment. For who wants a situation where a president is given a hostile CJ or AG?" Mr. Kipkorir reinforces the notion that the appointments made by the President are meant to serve his interests and not the national interest. He is correct to point out that the presidency would be well-served by a 'friendly' judiciary or Attorney-General; however the presidency may not always get its way.
The Preamble to the Constitution declares that all sovereign power (including the power to make such appointments) belongs to the people of Kenya and is to be exercised in their interest. Therefore, in the interests of the people of Kenya, whether the president faces a hostile CJ or A-G is neither here nor there. The President is limited to nominating only those officials who will serve the interests of the people and not his own. If President Kibaki so much as admits to have nominated men who would only serve his or the PNU's interests, indeed if the Prime Minister makes such an admission too, they will both have committed an offence. They will have admitted that they do not recognise the sovereign power of the people of Kenya and they would, thus, be unfit to continue in office. The classic American definition of democracy must apply - government of the people, for the people and by the people.
Finally, Mr. Kipkorir is wrong to dismiss the question of gender balance in the nominations. Of course, it is a difficult thing to carry out. However, from the statements being issued by the President's and Prime Minister's representatives, the two did not even have a short list of potential nominees that had women in them. The Constitutional places a burden on the President to nominate persons such as the final make-up of the instruments of governance reflect the rich diversity of this nation, including the role played by women in national governance and development.
The President and Prime Minister have demonstrated that they do not appreciate this rich diversity, instead concentrating overwhelmingly on what political advantage one may gain at the expense of the other when it comes to such sensitive issues. If, instead, they had declared that there were no qualified women to take up these positions, they would have opened up the debate on whether or not they were prejudiced against women, or that women simply did not measure up. Instead, refusing to acknowledge their presence reaffirms that when it comes to national governance or development, these two old men do not appreciate the positive and symbolic role the nomination of women would have played in further reforming the State after the August 4th Referendum.
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