The Speaker of the National Assembly will make his considered ruling based on an interpretation of the word "consultation". Perhaps he will make the right ruling, perhaps he will not. However, it is the manner in which the President and Prime Minister have behaved that have brought us to this sorry state. The shenanigans of the Leader of Government Business in the National Assembly, including his taking out of a full-page spread in the dailies, have not helped. He is not a party to the National Accord and Reconciliation Act of 2008; he is not a Principal. His views, such as they be, and his interpretation of the facts, such as they are, should be treated with the contempt reserved for interlopers nosing where they are not meant to.
The Prime Minister has stated his case. The President, through various proxies, has stated his. It is now up to us to make judgment and come to an appreciation of the dire situation this country is in as a result of the antics of the two Principals. If as the Prime Minister contends, the President did not consult fully with him, then he is in breach of the provisions of the Constitution. If on the other hand, the President did fully consult with the Prime Minister, the PM's only recourse would be to marshal support to defeat the appointment of the nominees.
What is becoming more and more apparent as 2012 draws near is that the two are willing to jettison the rule of law for their own selfish ends. President Kibaki is barred by the provisions of the Constitution from seeking another term as President of Kenya. He therefore, logically should have no problem with the PM competing against the remaining presidential hopefuls come 2012. As a lame duck president, who is not even the chairman of his party, he should take a neutral approach to the machinations in and out of Parliament, and instead offer Kenyans a vision of what t would be like to live under the rule of law and respect for national institutions, of which the Constitution is an integral and vital part.
When that demon seed of an accord was signed in 2008, and when we overwhelmingly ratified the Constitution in 2010, it was expected that the Principals would work together to reform the Judiciary, the National Assembly and the Executive. The results, to say the least, have been mixed. The President and PM continue to share power in an increasingly acrimonious fashion, and regardless of the assurances of the PM, we all know that all is not well. Time an again, the PM and President come to some sort of accommodation before competing and varied interests intervene and the agreement is left soiled on the floor of the National Assembly. The humiliations the PM has suffered at the hands of the President and his proxies begs the question of why he persists in maintaining the fiction that the coalition is for the national good.
The law is clear on how the President and the PM are to act when making appointments under this Constitution. Whether we like or not, when we ratified the Constitution, we also made a bargain that certain provisions of the former Constitution would continue to apply until the next general elections. Therefore, the appointments of a Chief Justice, Attorney-General, Director of Public Prosecutions and Controller of Budget, among others, would be made by the President, after consulting the PM and after vetting by the National Assembly. This patently undemocratic manner in making national appointments was ratified and endorsed by the people of Kenya. We cannot wish it away now that it seems to be causing untold misery on the PM an his cohort of supporters. The manner in which the President and PM consult with each other was never publicly debated and therefore, it is impossible to know what expectations the two had regarding this arrangement. If they themselves cannot agree on what constitutes consultation, then it is left to the people to interpret it for them, usually wit much emotional and political baggage accompanying that interpretation. However, a few facts bear repeating.
First, the notion of 'joint' nominations, which the PM has proposed, is not contemplated in the Constitution. A plain reading of the Constitution shows that the president shall nominate candidates only after consulting the Prime Minister. The nominations shall not be made by both of them. There is no provision for the PM to endorse the candidates that the President nominates; only that he will be involved in the process of choosing who will be nominated. Second, the Constitution Implementation Commission has no role to play in the appointment of the next Chief Justice. The deal that was struck between the Government and the ODM did not envisage a role for the CIC as it did not exist in 2008. In the drafting of the Transitional Clauses of the Constitution, the Committee of Experts could have provided for the input of the CIC in these matters; it did not, and we are the poorer for it. Third, the Judicial Service Commission too has no role to play in the appointment of the Chief Justice. Its role is reserved for all subsequent appointments of the CJ, as well as for the vetting of all judges and magistrates and the constitution of the Supreme Court. They are free to offer advise regarding the manner in which this imbroglio is affecting the reconstitution of the Judiciary, but Constitutionally speaking, they must wait their turn.
Our leaders are displaying a worrying tendency to disregard the rule of law. They did so when they addressed the question of constituency boundary limitation, as well as the appointment of the CIC and the Committee on Revenue Allocation. Also the Federation of Women Lawyers (Kenya) has pointed out that the gender equation has remained skewed against qualified female candidates to these positions. The Principals and their acolytes have consistently ignored the need to show that they are capable of not only considering but also nominating female candidates to the various constitutional offices already filled. This is another reason why the Leader of Government Business should be ignored whenever he opens his mouth - how could he think that by appointing a woman to be the Deputy Chief Justice would be sufficient to address the question of gender imbalance in the manner of these nominations?
But it is in the manner in which the Principals continue to ignore the will of the people that is truly galling. Why they thought that should keep the names of their nominees secret is beyond me. Even if they were going to ignore the input of the people, the Principals should have made the names public and allowed citizens to weigh in on their suitability or otherwise for the positions they were nominating them to. It would have cost them nothing and it would have demonstrated powerfully that they consider Kenyans partners in governance and not just irritants to be ignored. These two are laying the ground for uncertainty, conspiracy theories and political instability. If Kenya goes up in flames once more, it will be laid squarely at their feet.
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