Unfortunately for Job and others of his mind, Marende will not be making any interpretations of the constitution as you will see from this statement he made following a point of order:
Mr. G. Nyamweya: On a point of order, Mr. Speaker, Sir. Is it really in order for
the Minister for Justice, National Cohesion and Constitutional Affairs to urge you as the
Speaker to take the functions of the Judiciary? The Constitution can only be interpreted
by the Judiciary; the Supreme Court. In the absence of the Supreme Court, it says very
clearly that the Court of Appeal will do so. It is quite disturbing for the Minister to be
urging you to take the place of the Chief Justice. It is true that it is a weighty matter, but
let the Minister also give us factual and wise counsel and not mislead the House.
Mr. Speaker: Order! Indeed, the Minister was conscious of that concern. He did
urge me reservedly,
knowing that I am not the Chief Justice or Judge, but saying that
even as Speaker I have qualifications to be, but that I should not exercise that power from
this Chair. So, I have heard him.
If ignoring the weighty voices in the legal fraternity including JSC, CIC, AG, CJ, MoJ&CA, ICJ, part of LSK, KNCHR, KHRC, top counsels and top scholars in favour of a pedestrian ranting from a third rate lawyer suits you - well, all I can say is - clutch at the straws....please find anything to clutch upon as the water rises. Meanwhile chew these views of wananchi, expressed in Daily Nation - quite overwhelming:
Did President Kibaki act within the law when he named Judiciary nominees? 1. Submitted by vgogero
Posted February 02, 2011 06:22 PM
If there had been adequate consultations the PM would have proposed at least two of the nominees and the President two .But consultations can still go on unless the President has the final word .
2. Submitted by kellygakonya
Posted February 02, 2011 02:58 PM
No.What's more, he violated the Constitution. The claim that 'consultation can not mean the PM must concur, approve or consent' is frivolous. In fact he must. That is the object of collaborative consultation
3. Submitted by jichowembe
Posted February 02, 2011 02:24 PM
No he didn't and whoever advised him erred big time. An elementary reading of the Law as it is currently suggests that the process of identifying should begin at the Judicial service Commission of which he is not!
4. Submitted by LorotSonoftheHills
Posted February 02, 2011 11:02 AM
The law was
not adhered to. The spirit and letter of the constitution was flouted. It is not about consultation but wherther the law was followed.
5. Submitted by KenyanSamenya
Posted February 02, 2011 08:30 AM
No! and in the spirit of new constitution, let us pick our CJ, AG, etc in an open process. Even consultation and concurrence between the two principal is NOT acceptable. We need a similar process like the one that picked PLO KACC's.
6. Submitted by anerson
Posted February 02, 2011 07:49 AM
The whole process was rendered
nugatory and unconstitutional if it did not embrace the spirit of inclusiveness, transparency, and consultations.Anderson Omoto,Kakamega
7. Submitted by KIMLAND
Posted February 02, 2011 01:11 AM
Yes he did. Sec 24 of the Sixth schedule provides guidelines for selecting CJ before the coming general elections. It provides that the president shall appoint the CJ in consultation with the PM, and with confirmation by parliament. Raila has disputed having been consulted, then recanted the dispute. The appointee is headed to parliament for approval. The letter of the law is being followed, except for Raila's sideshows.
8. Submitted by wakhongola
Posted February 01, 2011 10:33 PM
The president ignored the spirit of the law by
not involving JSC which is place, to nominate the judicial officers. Indeed he even disregarded the necessity for gender equity in these appointments having been blinded by his personal need to cushion the Ocampo 6! The machiavellian tactics being employed by the Lords of Impunity may invite anarchy again!
9. Submitted by rofi
Posted February 01, 2011 07:16 PM
No he did not
10. Submitted by hochwada
Posted February 01, 2011 06:22 PM
He acted arbitrarily, perhaps because, perhaps, he is unable to shake off the residues of old order of the first and second republics. The archaic order venerates and embraces presidential authoritarianism where the big man has the say and the rest are merely a cheering crowd. The president and the Prime Minister must learn that consultation is not just between by the entire country -- Hannington Ochwada
11. Submitted by conradmasheti
Posted February 01, 2011 05:59 PM
He did not act within the law,Judicial Service Commission should competitively select the best then forward to the president and the Prime Minister for consultation and nomination.
12. Submitted by jlairuka
Posted February 01, 2011 02:59 PM
It is a high time that Kenyan leaders embraced constitutionalism. A nation that does
not respect its constitution goads failure. We overwhelmingly voted for the constitution last year and should follow it strictly. As leaders we must put our interests aside and pursue constitutionalism - the only way we can achieve peace.
13. Submitted by Mutangili1
Posted February 01, 2011 02:16 PM
Not at all, This situation gives me an opportunity to correct a historical misconception about Africa. Africa is not a backward continent, it is our leaders who are backward.
14. Submitted by vgogero
Posted February 01, 2011 01:12 PM
The new constitution is
rather ambiguous on the mode of appointments and provides for various modes of appointment .The one to be followed depends entirely on the Appointing authority .
15. Submitted by kamaumuigai
Posted February 01, 2011 11:43 AM
He did not and the law is very clear. As usual he sneaked the names of the appointees without regard to the law. What is wrong with waiting for recommendations from the JSC ? Much as the appointees are qualified, the process should have been competitive so that Kenyans can feel the own the process. Now he is even spoiling for them.
16. Submitted by jfeo
Posted February 01, 2011 11:39 AM
We behave as if we do not have brains or as if we have alzheimer.
NO!17. Submitted by Makagolla
Posted February 01, 2011 11:25 AM
That is a very obvious answer and it is ''NO'' he did not and the speaker should reject those names then let due process begin a fresh.
18. Submitted by Dawood08
Posted February 01, 2011 10:36 AM
CHAPTER 9: Part 4; 157(2); Director of public prosecutions shall be nominated and with approval of the national assembly appointed by the president. (Who nominates the DPP, someone must be taking advantage here) 166(1)a, The president shall appoint the chief justice and the deputy cj with the recommendation of judicial service commission and subject to approval of the national assembly;
(This one is clear, Kibaki is not within the law) 19. Submitted by Agido
Posted February 01, 2011 08:09 AM
When this regime is gone then we will know what following the law in this country means.There will come a time when one can clearly answer this question,but that time is not now.
No one follows the law. The way the matatus continues to behave on our roads is exactly the way the president and his team behaves. Now you tell us did he?
20. Submitted by nathaniel_lachlan
Posted February 01, 2011 01:59 AM
What is true here is that at least ONE OF THE LEADERS is lying to the nation! That we have such dishonest persons at the top of the country's leadership ladder is sad indeed! It is possible for one to be right, even legal, but still end up WRONGLY! Just like in 2007. We need to push the Principles to do things openly, constitutionally and in good faith.
This did not happen. 21. Submitted by wuod_aketch
Posted February 01, 2011 12:20 AM
The Judicial Service Commission declared that the list was
non-procedural and asked for withdrawal of the nominations to provide for fresh consultations between the two coalition principals. We need women in the list.
22. Submitted by emayieka
Posted January 31, 2011 08:51 PM
@vgogero a you sure you are OK? Comparing Kenya with USA? Whether we have 100% similar constitution, the structures in place are totally different. Go back and compare the two countries again.
23. Submitted by mig74
Posted January 31, 2011 06:55 PM
no. let jsc do its job. this was about showing who wears the pants.
24. Submitted by vgogero
Posted January 31, 2011 06:02 PM
Yes since the Kenyan constitution borrows heavily from the USA one .The then USA President the Late JF Kennedy once even appointed his Brother the US AG
25. Submitted by alnashirdwalji
Posted January 31, 2011 10:42 AM
President Kibaki must have after careful reflection/analysis named nominees - hence
he acted within the ambit of law. Yours faithfully, Alnashir D Walji Nairobi
26. Submitted by banyamulenge
Posted January 31, 2011 01:18 AM
whether or not he followed the laws is now not an issue but,the credibility of the chosen is what is now at stake .if they partake in a contentious process it will be a taint to their otherwise good credentials.
processes are there to be followed27. Submitted by emissary
Posted January 31, 2011 12:13 AM
It all depends on which law you are talking about.
The constitutional law was clearly broken. what wasn't broken is the law that states interests should win over citizens. Betrayal and arrogance with surely come back to bite.
28. Submitted by harriison
Posted January 30, 2011 06:36 PM
Kenya is destinity to continue without the big two. Its all about power. The guys nominated are good. Just politics but one must learn that
politics sometimes backfires if over played.29. Submitted by mungai63
Posted January 30, 2011 05:44 PM
WHY NOT DO AWAY WITH BOTH?Why do Kenyans see or think that Kibaki or Raila are more important than them(Kenyans)?Does it mean that Kenya would sink if both vanish(die) today?We must act now and remove this useless,corrupt govt from power.
30. Submitted by jfeo
Posted January 30, 2011 04:29 PM
I am sure he did.
There is no way the president of Kenya can break the law he swore to defend on behalf of all Kenyans.31. Submitted by yesuwangu
Posted January 30, 2011 04:29 PM
no not at all! For kibaki to follow the law its only by pressure.otherwise he is no different with moi32. Submitted by biegslubs
Posted January 30, 2011 02:07 PM
NO, The President ought to respect the constitution we overwhelmingly voted for and he himself supported. He must let the Judicial Service Commission do their work and, as well consult with his coalition partner, the PM. What he has done now smirks of impunity and portends a worrying trend for our beloved motherland. It is such kind of action that incrementally push Kenya to the brink, like what we had in 2007/2008.
33. Submitted by susanmulievi
Posted January 30, 2011 10:23 AM
Kenyans are tired of their country being run like a kiosk/personal property by our very greedy and self centred politicians.2012 is not far,fellow Kenyans,let us show all of them the door...there are many competent Kenyans to do the job