Odipo my dear,
Your statement could cause me sleepless nights. I totally do not agree with your sentiments.
1) First and foremost, there is the need to respect the Law. The 3 Arms of Governance is completely Independent of each other in the dispensing of Goods and Services. They are the fundamental guiding principles to the Rule in their respective governing body.
2) Kibaki is not above the Law, and both Principles are equal in Authority to advice and give direction. When one acts like he is a superior to the other, there is a question we may want to know. We have not forgotten how Kibaki stole election and enthroned himself to power in the middle of the night, and so we do not want the repeat. Kibaki’s behavior is the reason for many deaths in Kenya and the generated lack of trust, the reason he could not be left to make decision independently
3) The National Reform Accord is the Lead Bench Mark to the New Constitution until and after proper election is constituted
4) Kibaki stepped out of his boundary to assume Legal Authority powers
Therefore, your statement is misleading. What I read between the line is that you want to give President Kibaki a SECOND BLANK CHEQUE to rip off and rape the poor people of Kenya after the Public had endorsed clearly and substantively through the REFERENDUM that the Law Must be followed according to Public Mandate so SERVICES and GOODS can be delivered without VESTED INTERESTS.
Even if Kibaki is your friend, MEZEA…..better find other words of consolation.
The Public must get his ass and he must learn to behave……It is not business as usual.
Pole sana Odipo, this matter is extremely an extraordinary matter that do not require
patch work, business as usual. We are also not after short-time business here, many
people are hurting. I dont know about you with those you care for but I must tell you
the line must be straight transparency and accountability, not KOMBO KOMBO anymore.
The women and intellectuals have spoken, it is the law or Hague…… it is not both ways.
We will not be tired of fighting until the Voice of Reason is respected.
We are under the recently created and legally signed National Reform Accord Agenda that which gave rise to The New Constitution through Public voting right at REFERENDUM. It is not a wishy washy DOCUMENT for MEDDLING.
The New Constitution through the National Reform Accord was designed to suit the needs and demands of the Republic of Kenya and their security protection, not of the wishful thinking of some unknown interest or hidden agenda.
We must all learn to respect the law people !
Thanks,
Judy Miriga
Diaspora Spokesperson
Executive Director
Confederation Council Foundation for Africa Inc.,
USA
http://socioeconomicforum50.blogspot.com
– – – – – – – – – – –
Let’s not box President into a corner
By Dominic Odipo
“Nothing under this Section shall be construed as precluding the President, in consultation with the Prime Minister, from nominating and forwarding names, other than those submitted by the Public Service Commission, to the National Assembly for consideration and approval”
It is this clause in the pending Vetting of Judges and Magistrates Bill, 2011 which lies at the heart of the controversy now raging between Justice Minister Mutula Kilonzo and the Commission for Implementation of the Constitution (CIC), led by Charles Nyachae.
The minister wants this clause included in the Bill while the CIC wants it excluded. In effect, the CIC wants all those who want to sit on the board that will be vetting our judges and magistrates to be selected through the Public Service Commission and then a final list prepared from which the President, in consultation with the Prime Minister (whatever that means!), must then select the chair and the other members and forward their names to Parliament for approval
The minister, on the other hand, wants the two principals to have a more proactive role in this process. He wants the two in consultation, to be allowed to nominate a few people they think are fit to sit on this board and then present their names directly to Parliament for approval.
The CIC wants the Public Service Commission to have the final say over the list from which the final nominees emerge while the Justice Minister wants the two principals, if they wish, to be allowed to add a few names of their own, before the final list of nominees gets to Parliament for approval.
On the face of it, this sounds like some dreary, time-wasting argument over legal and civil service procedures, which the public might best leave to the so-called experts.
In fact, there is a fundamental political and constitutional issue lurking underneath this argument, which we all need to grasp. The real question here is this: Who will control or have the greatest influence on the Kenyan Judiciary in the new constitutional dispensation?
Sympathetic
Will the new Judiciary be moulded in the image of some faceless, technical and ideologically neutral Public Service Commission or will it be reconstructed and sensitised to respond to the more activist and interventionist spirit and letter of the new Constitution ?
To get to the heart of this matter, we need to drift ahead a little bit. Let us suppose that the Kenyan people elected a president whose platform emphasised gender equality, support for the weak and marginalised communities and protection of the environment.
Would it then not be in the national interest to have at least a few men or women on the board which vets judges and magistrates who were both alive to and sympathetic to those policies upon which the President had been elected? Suppose none of the people on the vetting board shared the President’s basic political philosophy, would we not be sowing the seeds of governmental gridlock if the President, who is elected by the majority of the Kenyan people, was to drive the country in one direction while the Judiciary, duly selected by that board, was driving it in the opposite direction?
Nothing under the new Constitution prevents the President from going out to campaign for a prospective or sitting senator or Member of Parliament. And that is surely as it should be. If the President sees some young man or woman out there in Kilifi whose political principles and sensitivities easily dovetail into his own, shouldn’t he be able to fly out there one afternoon and campaign for him or her without breaking the law?
No one could seriously argue that if the President campaigns for a senator or an MP, he would be destroying or threatening the sanctity of the principle of the separation of powers between the Executive, the Legislature and the Judiciary.
So, then, if it is permissible for the President to try and influence the membership of the national legislature, why should we be trying to build a firewall between him and the Judiciary? Why shouldn’t the President be allowed to present the name of a lawyer or judge whose principles and sensitivities he shares, directly to Parliament for approval to sit on this board?
Under the American system, one of the most advanced in the world in this regard, there is no CIC and no vetting board, which clears potential Supreme Court justices or Federal court judges. When a vacancy occurs in the Supreme Court, for example, it is the President who, in the first instance, appoints a nominee to fill the vacancy.
Generally, if the President happens to be ideologically liberal, like Bill Clinton, he will nominate a liberal judge or lawyer. If he happens to be a conservative, like Ronald Reagan, he will appoint a conservative lawyer or judge. The name of the nominee is then submitted to the American Senate for approval.
Unrealistic, insensitive
What does all this amount to? It is this: On this issue, the Justice Minister is right and CIC is wrong. The contentious clause quoted at the beginning of this article should remain in this Bill, exactly as it now appears. If this clause is removed, we shall be backhandedly trying to build a firewall between the Presidency and the Judiciary that is both unrealistic and highly insensitive to the political and constitutional realities that rule in this country.
If the President is chosen by majority of the citizens, there can be no logical reason for totally excluding him from selecting those who select our most important judges and magistrates.
—The writer is a lecturer and consultant in Nairobi.
dominicodipo@yahoo.co.uk