NAIROBI: HOW CONSULTATIONS WERE HELD BETWEEN PRESIDENT MWAI KIBAKI AND PRIME MINISTER RAILA ODINGA ON JUDICIAL APPOINTMENTS

                                    Vice President Hon. Stephen Kalonzo Musyoka

1. The subject of Judicial appointments was first discussed at a meeting between the President and the Prime Minister held before Christmas, on December 16th 2010. During the meeting, the President felt that it would be better if the issue was revisited after the New Year.

2. The item of the appointments was subsequently placed in the agenda and discussed on January 6, 2011, at Harambee House between H.E. the President and The Rt. Hon. Prime Minister. The meeting agreed on the procedure to be followed in the appointments:
The identification and consultations on the nominations by the two principals and submission to parliament by H.E. the President for approval.
It was agreed that the law did not require the selection of the candidates by either the Judicial Service Commission or Public Service Commission.
The technical team was instructed to identify suitable candidates to facilitate further consultations. In the technical meetings it was observed that:
　. The Prime Minister had expressed the view that we should have a foreign Chief Justice.

ii. However, His Excellency the President insisted that at close to 50 years of independence we have very qualified Kenyans and to search for a Chief Justice outside Kenya would be improper and would send the wrong message to the Law Society of Kenya, the Legal Fraternity and the rest of Kenyans.

3. On Thursday, January, 27th, 2011, the item was on the agenda in a consultations meeting held from 12 noon between His Excellency the President and The Right Honourable Prime Minister, at Harambee House.

During the meeting, President Kibaki presented his proposal, borrowing on the consultations which had taken place between the technical teams representing him and the Prime Minister. The Proposal was:
Justice Kihara for Chief Justice
Fred Ojiambo for Attorney General
The post of Deputy Chief Justice to be filled by a woman through the Judicial Service Commission.
Kioko Kilukumi for Director of Public Prosecution.
William Kirwa for Director of Budget
4.In response, the Prime Minister said that if the President could not agree for a Judge from the Commonwealth to be Chief Justice, then he would insist on Justice Omollo for the position of Chief Justice.

5.The President pointed out that he needed to make the appointments before he left for Addis Ababa, Ethiopia for the African Union meeting. It was therefore decided that the technical team would discuss the list and report back on the same day in the afternoon. The team comprised Amb. Francis Muthaura, Mr. Mohammed Isahakia, Prof. Nick Wanjohi and Mr. Caroli Omondi.

6.The technical team reported separately that they had agreed on three of the positions but were unable to agree on the position of the Chief Justice. The team presented three options for Chief Justice: Justice Omollo, Justice Kihara or Justice Visram for consideration by the Principals.

7.At the same time, the President asked the Prime Minister to propose an Attorney General to replace Mr. Ojiambo, as the job of the Attorney General, being the chief legal advisor of Government required higher post-graduate qualifications. Prof. Githu Muigai was proposed and agreed on by both technical sides.


8.The President said that because he was travelling to Addis Ababa on Saturday, the matter needed to be finalized by 12 noon on Friday, January 28, 2011. It was imperative that the proposals were made before the African Union’s Heads of State meeting in Addis Ababa. This was made clear to the Prime Minister.

9.On Friday morning, January 28, 2011, the Prime Minister sent a letter signed by Mr. Caroli Omondi addressed to Amb. Muthaura saying that the Prime Minister had left for Addis Ababa and that consultation should be held the following week.

10.The Prime Minister was informed that because the matter needed to be concluded before the President left for Addis Ababa, consultations could be facilitated through the phone. The President then made the proposal of having Justice Visram as Chief Justice, who hails from a minority community to accommodate the Prime Minister’s concerns of neutrality. The proposal was communicated to the Prime Minister. In response, the Prime Minister said he had no problem with Prof. Githu Muigai as Attorney General but insisted on Justice Omollo being nominated as Chief Justice.

11.The Prime Minister was asked to call the President from Addis Ababa so that they could finalize. The Prime Minister said he would call the President. The President waited at Harambee House from 12:30 pm until 3 pm but the Prime Minister did not call.

12.The President left for Statehouse for lunch at 3 pm, and a telephone number to reach the President at Statehouse was communicated to the Prime Minister so that he could call the President. The Prime Minister did not call.

13.At 6pm, the Statehouse Comptroller called the Prime Minister for the President to speak to him. Mr. Caroli Omondi answered the Prime Minister’s phone. After consulting, Mr. Caroli Omondi said the
Prime Minister was busy and would call back after one and a half hours.

14.The President then felt that he had consulted extensively and had accommodated the Prime Minister and had fulfilled the constitutional requirements and therefore, made the announcement on Friday, January 28th 2011 at 8.30pm.



STEPHEN KALONZO MUSYOKA
VICE PRESIDENT OF THE REPUBLIC OF KENYA