As parliament receives a report this Tuesday on the nominees for Chief Justice, Deputy Chief Justice, and Director of Public Prosecutions, there is a lingering question: how is it a parliamentary committee was able to vet the nominees within four days, yet for more than three weeks members of parliament were unable to agree who was to do the vetting?
The weeks-long back and forth seems to have been influenced by the shadows of the International Criminal Court (ICC) and general elections scheduled for August 2012.
On Thursday, Abdication Hussein Mohammed, chairman of the Constitutional Implementation Oversight Committee, said the Committee will recommend parliament approves the nominations of Willy Munyowki Mutunga for Chief Justice, Nancy Makokha Baraza for Deputy Chief Justice, and Keriako Tobiko for Director of Public Prosecutions. Mohammed reported that the Committee reached its decision after three days of listening to the nominees and those who supported and opposed their candidature and taking a vote.
Mohammed said of the 23 members present, 21 voted in favor of Mutunga’s nomination, while two opposed it. Baraza received the unanimous support of the Committee. Tobiko split the Committee, with 11 members voting for or against him and one member abstaining. Mohammed said that because Tobiko received at least 50 percent of the votes of the Committee, members decided to recommend his nomination be approved and leave it to members of parliament to decide whether the allegations made against his professional conduct warrant voting down his nomination.
Mohammed is humble, measures his words, and works at building consensus. Qualities that saw him steer with confidence last year’s charged negotiations for a new constitution when the document reached the parliamentary committee he chaired at the time. His deputy at the time was Ababu Namwamba. Together they worked well.
However, once the new constitution was passed and it came to implementation, a political dispute over which coalition government partner would control two key parliamentary committees – the Constitutional Implementation Oversight Committee and the Justice and Legal Affairs Committee. This dispute saw the Mohammed-Namwamba duo broken up.
The Orange Democratic Movement (ODM) party wanted to have one of its own chair the Constitutional Implementation Oversight Committee and named Namwamba for the post. Its partner, the Party of National Unity (PNU), did not support this, so Mohammed was the compromise candidate for chair and another ODM member of parliament was chosen as his vice-chair. As part of a political deal, ODM got to select the chair of the Justice and Legal Affairs Committee and Namwamba was tapped for that position.
This compromise appeared work until February, when controversy began over President Mwai Kibaki’s initial nominations for Chief Justice, Attorney General, Director of Public Prosecutions, and Controller of Budget. Then the National Assembly Speaker asked the relevant parliamentary committees – Finance, Planning and Trade, and that of Justice and Legal Affairs – to determine whether the president’s action was constitutional. The Committees tabled their reports in parliament. Before the reports’ conclusions were read and debated, the Speaker ruled the president’s action was unconstitutional, and therefore there was no need to take the matter further.
The Speaker’s ruling saved parliament from an acrimonious debate that would have fractured it along the same lines as the coalition government, which at the time was divided between those supporting and those opposing Kenya’s search for a U.N. Security Council deferral of the cases at the ICC. In fact, Kibaki’s side of the government and its allies had argued his nominations were important in order to show the African Union that Kenya was serious about reforming its criminal justice system. Thus, Kenya would be able to handle politically sensitive cases stemming from the violence that nearly tore the country apart after the botched December 2007 presidential election.
Those divisions have continued to drain the energies of the Justice and Legal Affairs Committee, with members who are allies to ICC suspects William Ruto and Uhuru Kenyatta calling for the removal of Namwamba as chairman. They claim Namwamba did not faithfully reflect the views of the committee in the report on the president’s nomination, and so they have lost confidence in him. As the report was never debated in parliament it is difficult to verify this.
This months-long dispute has paralyzed the Justice and Legal Affairs Committee, even though its mandate includes scrutinizing bills touching on the judiciary and the elections body, as well as vetting any nominees to those institutions. The judicial reforms that this Committee is supposed to be a key component of may not directly affect those with cases before the ICC, but if the Kenya cases were to be referred back home, influencing judicial reforms would be important. This year Kenya forms its first Supreme Court, which will be responsible for handling presidential election disputes. The country is also working to reform its elections organization to ensure the mistakes of 2007 are not repeated.
The dispute seems to be less about Namwamba as chair and more about controlling a committee that has critical mandate ahead of next year’s elections. Those supporting Namwamba are also strong supporters of Prime Minister Raila Odinga, a leading presidential aspirant, especially since Kibaki will have completed a second and final term in office next year. Ruto has declared he will seek the presidency and Kenyatta is also believed to be an aspiring presidential candidate.
Bills elucidating the Supreme Court and the proposed independent electoral commission have been sent for scrutiny to the Constitutional Implementation Oversight Committee by the Speaker. That committee has more members (27) than the Justice and Legal Affairs one (11). However, when it was formed it excluded any member of parliament who was part of the campaign against the new constitution. Ruto was one of the leaders of that campaign. Thus, that Committee seems to be more imbued with the spirit to implement the new constitution than the Justice and Legal Affairs one.
And so once it was given the mandate to vet the nominees for Chief Justice, Deputy Chief Justice, and Director of Public Prosecutions, it was able to get down to business in a few days and wrap up its work quickly.