Having taken my time to read several editorial pieces on the above subject since the contested judicial nominations were made, I am left with many questions to the men and women of the media:
1. What do you decipher when you read sections 156(2), 157 (2) and 228 (1) of the new constitution which states that "The Attorney-General,.....the Director of Public Prosecutions and the Controller of Budget shall be nominated by the President and, with the approval of the National Assembly, appointed by the President." These sections as read in concurrence of section 29 (2) of the Sixth Schedule set out the procedure of filling the positions of the Attorney General, Director of Public Prosecutions and the Controller of Budget.
I want to imagine that these clauses are worded in very simple language and that they do not require deep legal interpretation. While at University doing my undergraduate,in Forensic Linguistics I was taught by Dr.Buregeya that the first rule of interpretation requires that any statement should to be construed in its plain, face and ordinary meaning. Its now apparent that the above mentioned clauses have a 'new' meaning to the highly esteemed men and woman of the fourth estate.
2. Section 166 (1) of the Constitution as read together with section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) provides that "The President shall appoint the Chief Justice and the Deputy Chief Justice,but until after the first elections under this constitution, the Chief Justice and the Deputy Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly," These provisions in their plain and ordinary meaning do not require the involvement Judicial Service Commission (JSC) in the initial appointment of a new Chief Justice. Its not beyond any ones ken that the JSC is not even properly commissioned since a new Chief Justice is yet to be appointed.
Without any degree of equivocation to me this is a legal absurdity that the current Chief Justice as well as two serving Judges, Justices Riaga Omolo of the Court of Appeal and Isaac Lenaola of the High Court and the Registrar of the High Court, Lydia Achode would want to be involved in the appointment of a new Chief Justice. Their opposition to the nominations by the President is inherently illogical,myopic,inept and informed by personal rather than legal considerations. It is important to note that that these judicial officers will be subjected to vetting by the JSC and the National Assembly.
1. What do you decipher when you read sections 156(2), 157 (2) and 228 (1) of the new constitution which states that "The Attorney-General,.....the Director of Public Prosecutions and the Controller of Budget shall be nominated by the President and, with the approval of the National Assembly, appointed by the President." These sections as read in concurrence of section 29 (2) of the Sixth Schedule set out the procedure of filling the positions of the Attorney General, Director of Public Prosecutions and the Controller of Budget.
I want to imagine that these clauses are worded in very simple language and that they do not require deep legal interpretation. While at University doing my undergraduate,in Forensic Linguistics I was taught by Dr.Buregeya that the first rule of interpretation requires that any statement should to be construed in its plain, face and ordinary meaning. Its now apparent that the above mentioned clauses have a 'new' meaning to the highly esteemed men and woman of the fourth estate.
2. Section 166 (1) of the Constitution as read together with section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) provides that "The President shall appoint the Chief Justice and the Deputy Chief Justice,but until after the first elections under this constitution, the Chief Justice and the Deputy Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly," These provisions in their plain and ordinary meaning do not require the involvement Judicial Service Commission (JSC) in the initial appointment of a new Chief Justice. Its not beyond any ones ken that the JSC is not even properly commissioned since a new Chief Justice is yet to be appointed.
Without any degree of equivocation to me this is a legal absurdity that the current Chief Justice as well as two serving Judges, Justices Riaga Omolo of the Court of Appeal and Isaac Lenaola of the High Court and the Registrar of the High Court, Lydia Achode would want to be involved in the appointment of a new Chief Justice. Their opposition to the nominations by the President is inherently illogical,myopic,inept and informed by personal rather than legal considerations. It is important to note that that these judicial officers will be subjected to vetting by the JSC and the National Assembly.
Hon. Amos Wako the Attorney General makes it even look worse to seek to be involved in the selection of a new Chief Justice and his own successor when he has constantly been cited by local and international forums as the major impediment to reforms in the Criminal Justice system which has occasioned breeding of impunity in Kenya.
The Chief Justice will chair the JSC and one cannot be forgiven if he fails to read mischief and inherent ignorance by some members of the JSC who want to determine beforehand who will supervise and vet them. The assertions by Justices Evan Gicheru, Riaga Omolo, Isaac Lenaola and the Registrar of the High court is therefore largely flawed,inconsequential and should be rejected on the basis that "a man shall not be a judge in his own course".
3.The media editorial pieces are highly lopsided and devoid of any reference to the applicable law.Almost all your editorials on the above subject are biased to give the impression that the President breached the Constitution in making the above nominations. Every other media house seems to have taken an editorial stance informed by one side of the Coalition Government that they were not consulted. I watched one TV station at their 9PM news showing how President Kibaki fails to honour promises ,such as the infamous MOU and they tried to compare this with the contested nominations,This a clear indication that our journalists have no nose for news,do not clearly know what constitute a newsworthy item and are in urgent need of adulthood education !A purely legal process has thus become mired in the miasma of highly divisive and emotive politics. Why do the media believe one side of the coalition and not the other? Why is the media so keen to create an impression that the PNU side of the coalition is the government and ODM the opposition within? Why are some senior editors now asking the nominees to decline the nominations?
The Hon. James Orengo, was the first to fire the first salvo and cast aspersions into the propriety of the procedure for the above nominations. Since he is not one of the Principals, it would be proper to ask him how he learnt of the names of the individuals nominated. The consultation stipulated in section 29 (2) of the Sixth Schedule (Transitional and Consequential Provisions) is not defined nor is its ultimate outcome stated. It is only an adjectival (procedural) requirement of law and the Constitution gives the National Assembly the power to determine the substantive issues relating the nominees. Whether the President consulted the Prime Minister or not is a question of fact which only the two Principals can shed light on. However the outburst by Hon. Orengo is evidence that there was a discussion of some sort and that names were floated for nomination to the above offices.
What is coming out clear is that there was no consensus but again the law does not dictate that there must be consensus. Whether such discussion or consultation resulted in an agreement or disagreement is political issue which should be now addressed in the National Assembly where it rightfully belongs. . It is important for members of the press to report matters relating to the implementation of the question truthfully, fairly,soberly and objectively. Lawyers will always differ in the interpretation of the law. That is why courts exist. Some of us seem ignorant of what letter and spirit of law means and how they apply. Taking the views of one side as the ultimate gospel truth is fallacious,misleading malicious and intended for no good. Indeed the truest characters of ignorance are vanity, pride, arrogance,vainglory,ostentation and pretense and this is what some media houses and some of our leaders are displaying in glare of the public
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