Wednesday, February 2, 2011



By Jerry Okungu

Nairobi, Kenya

February 2, 2011

I don’t know Justice Alnashir Visram very well but since President Kibaki nominated him for the post of Chief Justice, I have gone through his credentials that are available to the public. However, one thing stands out in this good man’s profile. He is a sitting judge of the Court of Appeal in Kenya that the constitution requires to be vetted along with other sitting judges and magistrates before being considered for reappointment. How the President’s advisors convinced the President to settle on this man beats logic. Other than flouting the constitution, this flagrant act has dented the image of the good judge.

I also don’t know William Kirwa very well other than now knowing that he has been working at the Agricultural Development Corporation. However, when word started spreading around that he is not fit to be nominated because he is under investigation by the Parliamentary Committee on Agriculture, I felt confused. I was confused because under normal circumstances, before an individual is appointed to such an important public office as that of the Controller of the National Budget, the least that is expected is that a background check by the National Intelligence Service must have been carried out. If indeed such a check was carried out, did our intelligence sleuths miss the fact that Parliament was investigating him?

Another sad situation was the fact that as the Head of State was busy nominating William Kirwa to be in charge of Budget Control, did someone remind him that just the other day, one Micah Cheresem, a fellow Kalenjin had been appointed the Chairman of Revenue Collection Commission? Did anybody remind the President that in appointing Kenyans to these positions, regional, ethnic and gender balance was a requirement of the constitution?

I have known Githu Muigai for many years right from his undergraduate days. I knew him as a law student who loved the Arts and mingled easily with us at the Kenya National Theatre whenever we had performances. And to tell you the truth, Githu Muigai is a gentleman who makes sure that he remains civil to all and sundry around him.

For those of us who have followed his rise in the legal profession and academia, none of us can fault him for achieving so much in the last two and a half decades. He is one man who, though he shares his first name with Uhuru Kenyattta, has worked hard to earn the respect of many Kenyans who have had the privilege of knowing him.

My gripe with the President on this man is this: why soil the reputation of this great Kenyan and subject him to unnecessary public debate just because you saw it necessary to violate the constitution you would be charging him to uphold? What was so difficult in allowing Githu to go through the due process and be vetted by his learned colleagues who would have given him a clean bill of health anyway?

Lawyer Kioko Kilukumi is an interesting study in conflict of interest. The man has been a defence lawyer of who is who in Economic Crimes in Kenya. If anything, he has been the main beneficiary of all the mega scams in Kenya’s history in the last decade and a half. He has defended the Golden Berg architects of economic crimes, he went ahead to offer his services to Anglo Leasing masterminds and was readily available when the Grand Regency scandal was unfolding. To cap it all, he has until just yesterday the defence lawyer for William Ruto in the land fraud scandal that is currently in progress. Now, if you are the President of the Republic interesting in the well fare of Kenyans, how can you appoint this type of man a Director of Public Prosecutions knowing that his former clients will be the first ones to head to court under his new assignment?

The President in his capacity as the appointing authority has in fact abused his office and instead of promoting harmony in our political process, he has instead fueled feelings of mistrust which are the basic recipe for another round of conflict either now or in the near future.

Now that the PNU arm of the Coalition is threatening to walk out of the Coalition so that the President can form his own Government of National Unity like he did in 2005 after losing the referendum, are these the people advising the President when they have not read the document that created the National Accord? If the PNU is accusing the ODM of going behind the President’s back in denying that there was in fact consultation when in fact there was, are we to believe that there is no power sharing arrangement where either party can block the appointment if there is no consensus? Can we have a lopsided consultation where one partner’s opinion or suggestion is of no consequence?

The bottom line is simple: all these four people are good Kenyans who have a right to be appointed to any position that they are qualified to, however; the crux of the matter is very simple. The President should have upheld the sanctity of the constitution in nominating them. He should have born in mind the cardinal demands of the constitution; that there must be exhaustive consultation with the coalition partner, bear in mind regional, ethnic and gender balance. Sad to note that the President failed in all these four areas and in the process has belittled and betrayed Kenyans unnecessarily.