JURIST - Paper Chase: Kenya parliament speaker rules presidential nominations unconstitutional

[JURIST] Kenneth Marende, Speaker of the Kenyan National Assembly [official website], ruled [text] Thursday that four nominations made by President Mwai Kibaki [official profile] had violated the requirement of consultation with the prime minister under the new constitution [text, PDF; JURIST news archive]. In the ruling, Marende found that Kibaki's nominees to the positions of chief justice, attorney general, director of public prosecutions and controller of budget had violated Article 29(2) of the constitution, which states: "when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly." Prime Minister Raila Odinga [official website] has disputed the nominations [VOA report], which were made while he was in Ethiopia. Odinga had asked Kibaki to wait for his return to Kenya before making the nominations. After finding that he could rule on the issue, Marende held:

I find and rule that the constitutional requirements of ... consultation subject to the National Accord and Reconciliation Act are not met if the National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between His Excellency, the President and the Prime Minister. Such is not the nomination contemplated by the National Accord and Reconciliation Act, which is part of the Constitution. It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its Committees nor by a vote on a Motion in the House. Further, and I so find, no Motion on such a nomination, whatever its terms and whatever the contents of the Report upon which the Motion is based, is admissible and I therefore hereby so order.

Following the ruling, Kibaki argued that Marende's ruling violated the separation of powers [KBC report], and that the issue should have been left for the courts to decide. Kibaki also insisted that his nominations were made pursuant to the constitution.

Last week, the High Court of Nairobi [official website] ruled that the nominations were unconstitutional because they violated promises of gender equality [JURIST report]. Justice Daniel Musinga found that Kibaki's appointments violated Article 27(3) of the constitution, which states, "[w]omen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres." Kenya ratified its new constitution [JURIST report] in August, as part of a reform movement aimed at curbing vast presidential powers. Kenya's new constitution includes numerous checks on presidential authority, among which are the creation of a supreme court and senate. The new constitution was approved by popular referendum [JURIST report], which took place amid concerns that high turnout and heated debate over the referendum could cause a repeat of the violence following the 2007 presidential election [JURIST news archive] that resulted in Kenya's current power sharing agreement between Kibaki and Odinga. The government is now expected to start implementing the new constitution, which could take as long as five years.