NAIROBI, Kenya, Feb 3 – The High Court has declared that President Mwai Kibaki breached the Constitution when he nominated four people to crucial posts in the justice system and budget office.
Justice Daniel Musinga ordered that no State organ, including Parliament, should proceed with the process which sought to name a Chief Justice, Attorney General, Director of Public Prosecutions, and Controller of Budget.
“I am satisfied that the nominations were in breach of Article 27(3) that guarantees fundamental rights and freedom of women and men to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres,” Justice Daniel Musinga ruled.
“I therefore direct that such nominations were unconstitutional. It would be unconstitutional to carry on with the process of approval. It must await the outcome of this petition.”
The judge’s ruling means that Parliament is barred from discussing and approving the nominees.
“The court can’t restrain the National Assembly from its work but unless the Speaker points out the unconstitutionality of such debates then the court cannot sit back and allow such violation. The court has an obligation to point out to the National Assembly such breaches of the Constitution,” Justice Musinga ruled.
President Kibaki nominated Justice Alnashir Visram as CJ, Prof Githu Muigai as Attorney General, Kioko Kilukumi DPP and William Kirwa as Controller of Budget prompting eight non-governmental organisations to seek court orders to block the process of approval and eventual appointment.
According to the organisations, the manner in which the President made the nominations was in total disregard of provisions of the constitution requiring consultation and consideration of gender equity, and was likely to bring disunity in the country.
“I am satisfied that the nominations were in breach of Article 27(3) of the Constitution that guarantees fundamental rights and freedom of women and men to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres,” Justice Daniel Musinga ruled.
“I therefore direct that such nominations were unconstitutional as the principle of equality was not given consideration.”
The judge said the President ought to have consulted the Prime Minister before he made the decision as provided by the National Accord which provides for the consultations between them in any government appointments.
“It appears to me there was some consultations between the two but there was no consensus which negates the principles and values of the National Accord,” the judge said.
“This court must uphold the twin principles of constitutionality and rule of law which every State organ must abide by.”
He told the court to halt the President’s move as it negated the spirit and letter of the Constitution.
The eight applicants included the Centre for Rights Education and Awareness (CREAW), Caucus for Women’s Leadership (CAUCUS), Tomorrow Child Initiative (TCI) and Women in Law and Development (K).
Others are Development Through Media (DTM), Coalition on Violence Against Women (COVAW), Young Women Leadership Institute (YWLI) and the League of Kenya Women Voters.
In their petition, the applicants claimed that the nominations were done without advertisement, and members of the public who ought to have participated, were kept in the dark.
They argued that under Article 10(2) (a) that guarantees the Rule of Law as one of the National Values and Principles that bind all state officers, public officers and all persons whenever they apply or interpret the Constitution and in line with these provisions, they had the right to challenge the nominations.
“There is real and present danger that unless halted, other organs of state like the National Assembly may be buoyed by the President’s unconstitutional acts and approve the same hence set in motion foundations of blatant disregard for the Constitution,” their lawyer said.