Kenyan National Assembly Speaker Kenneth Marende on Thursday declared the nominations of the country's judicial officers unconstitutional and ordered a fresh start. In his ruling which was delivered in Parliament, Marende said the nominations of four key legal and finance office holders by President Mwai Kibaki are unconstitutional and women were also discriminated against.
"It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its committees or by a vote on a motion in the House," he said and sent back the names to both Kibaki and Prime Minister Raila Odinga.
Marende said differences between the two principals (Kibaki and Odinga) confirmed that there were no proper consultations before the list of nominees was drawn.
"This ruling is not in any way a commentary on the suitability of any of the nominees," Marende said.
The speaker also asked President Kibaki and Prime Minister Odinga to come up with a new list of nominees to the crucial constitutional offices.
"Appointments are required to be made by the president according to the National Accord in consultations with the PM and approval of the National Assembly," the speaker ruled.
Last month, President Kibaki nominated Alnashir Visram as the Chief Justice, Prof Githu Muigai as Attorney General, Kioko Kilukumi for Director of Public Prosecutions and William Kirwa as Controller of Budget.
These offices have been set up under the new constitution that Kenyans passed in August last year.
The constitution is seen as an important step in advancing equitable distribution of national resources through devolution of political and economic governance and has a bill of Rights that guarantees personal freedoms.
However, the prime minister and his party distanced themselves from the nominations, insisting that the Odinga was never consulted, a move that is threatening to tear the Coalition Government.
Marende told parliament that the nomination process disregarded public participation and directed that fresh nominations be conducted in full compliance with the constitution.
Marende cautioned against any attempts to water down the firm provisions in the new constitution under the guise that the country is in a transitional period.
He declared that Parliament will not debate the list that was submitted by the president on Jan. 31, stating that the reports by the Committees of Justice and Legal Affairs, and the other on Finance and Trade, will not be part of the business of the House. Marende told parliament that the Judicial Service Commission should have been involved in the nomination process in accordance with the law, adding that such nominations must be beyond partisan interests since the offices are key in bringing reforms in the judiciary.
He said given that the process of the nominations has violated the constitution there is no way Parliament could cure the anomaly either by the house reports of the committees or by having the report voted for or against in parliament and thus the two principals must go back to the drawing board and follow the law in conducting fresh nominations.
The move came after Feb. 3 ruling by the High Court which declared that President Kibaki breached the constitution when he selected four nominees for justice and budget office jobs.
Making the ruling, Justice Daniel Musinga also ordered that no state organ should proceed with the process which sought to name a Chief Justice, an Attorney General, a Director of Public Prosecutions, and a Controller of Budget.
The speaker's ruling was immediately rejected by President Kibaki's Party of National Unity (PNU). Cabinet Minister Uhuru Kenyatta and Kiraitu Murungi said they would definitely be seeking a review of the ruling. "You have all seen what has happened in that House and that is what we are going to contest. It was not a fair ruling," said Murungi.
But Odinga's ODM party welcomed the ruling, saying it would jumpstart the stalled nomination process. "These MPs are not sincere and all what they want is to derail the implementation of the new constitution," said lawmaker Rachel Shebesh.
The ruling came as a relief to most Kenyans because of the tension it had caused, being a disagreement played in public between the prime minister and the president.
The two leaders formed a coalition government in 2008 after post-election violence which almost led the country into a civil war.
The currently political crisis has threatened to derail the implementation of the new constitution, a process that is being accelerated until August 2012 when the next elections will be held.
It has also raided Kenya's political profile with the private sector expressing concern that it could derail economic growth in the country.