MOTION ON LEGALITY OF KIBAKI'S PRESIDENCY IN THE OFFING IN PARLIAMENT

The Standard
Nairobi, Kenya
October 9, 2008

By David Ohito

A fresh storm over the controversial presidential election last year could erupt in Parliament as a notice of Motion on the Kriegler report is set to come to the House.

In a move likely to set Parliament on a collision course with the Executive and with the potential to reopen fresh political wounds between the coalition partners, Webuye MP Alfred Wekesa Sambu (ODM) is asking Parliament to establish a committee to determine if President Kibaki is in office legally, after an election where there was no winner.

Sambu’s Motion also seeks fresh presidential polls ordered so that there is a known winner heading the Government.

This comes in the wake of revelations that a Cabinet sub-committee has approved the Kriegler report.

Foreign Affairs Minister Moses Wetangula said the report would be tabled in the next full Cabinet meeting to discuss its implementation.

The Motion, if passed, may pose fresh challenges for the Coalition Government that brought bitter rivals from ODM and PNU to a power sharing arrangement as it raises constitutional and legal issues and wants Parliament to act on the ‘No Winner’ verdict.

In the Motion’s crosshairs is Chief Justice Evan Gicheru who is accused of hurriedly swearing in the President despite a dispute and in a prejudicial manner.

"We want to find out whether or not in supervising the hasty swearing in ceremony, the Chief Justice acted illegally and therefore guilty of a crime against humanity," Sambu said.

In doubt is the legality of Kibaki’s presidency after an independent commission unanimously technically declared the presidential election void.

Kriegler chaired the Independent Review Commission that concluded that it was impossible to know who won the 2007 presidential election.

Sources within Parliament said the planned Motion has sent shock waves among political bigwigs, as top Government functionaries raced to find technical grounds on which to block it.

"They are against my Motion, but I am seeking Speaker Kenneth Marende’s indulgence and that of the House Business Committee to have it lined up for debate," Sambu confirmed.

"There was no President declared in accordance with the Constitution of Kenya," Sambu said, yesterday.

He was referring to Section 5 sub-section 3 (f) of the Constitution, which states that the candidate for President who is elected MP and who receives a greater number of valid votes cast in the presidential election than any other candidate for president and who, receives a minimum of 25 per cent of valid votes in at least five of the eight provinces, shall be elected as president."

Added Sambu, "The Constitution is clear that the winner is declared President. The ‘No Known Winner’ verdict by Kriegler is in no uncertain terms telling us that the President was not elected to office as required by law and is in office illegally."

He said that the Kreigler commission was working under the oath of the land makes its recommendations legally binding.

"I want leaders and Parliament to respect the Constitution. There is a legal lacuna," Sambu said.

"I have been approached to withdraw the Motion after the notice sent shivers across members, but I am determined to go full length once the Speaker and the House Business committee signs it, " Sambu said.

He claimed he enjoyed support across the country in demanding for a winner in the last presidential election.

His sentiments negate those of his party leader and Prime Minister Raila Odinga, who has been asking Kenyans to forget the bungled election and focus on the future.

But legal practitioners have punched holes in the Motion.

Prof Githu Muigai, speaking from Addis Ababa, said: "The manner of challenging the election of an MP or President is set out in the Constitution. No other authority, except the High Court and the Court of Appeal, can determine the legality of an election, he said.

"The purpose of separation of powers is that Parliament makes laws and the Judiciary interprets them. It is a great danger to constitutionalism if Parliament was to reconstitute itself into a court.

Senior counsel and former Kabete MP Paul Muite argued that Parliament cannot adjudicate legal and constitutional disputes.

Muite said legal issues should be raised before a constitutional court for reference.

Sambu said the House can not bury its head in the sand and fail to correct the ills emanating from the flawed General Election.

Marende said Parliament would only act on the Kriegler report once it is laid before the House, debated and a consensus is reached.

Sambu says the future of Kenya is at stake and the House would be guilty of sleeping on the job were it to do nothing bout the Kriegler report.

He argues the august House must stand up and be counted on its role in the fight for democratic rights to redeem the image of the country locally and internationally.

The Motion similarly targets Electoral Commission of Kenya (ECK) demanding their immediate resignation of the commissioners.

Wetangula said all Kenyans were in agreement that there was need for a lean, efficient, and effective ECK.

"All of us agree on the need to reform the ECK. There must be institutional changes that must be addressed, which made us run into the post-election crisis. The Constitution must be changed. We must have institutional reforms for us to have a leaner, efficient and effective electoral body," he added.

ODM secretary General Anyang’ Nyong’o said the party would call a press conference to gave a comprehensive statement on the Sambu Motion. Prof Nyong’o said the Motion could be amended to take cognizance of other legal and constitutional issues.