Katiba Baraza: New order subjects top officials to vetting


Parliament will play a key role in the appointment and dismissal of key constitutional office holders if the proposed constitution is approved.

The culture of holding on to such positions for far too long will also come to an end in the new order.

Under the current laws, the President has the say in the appointment of ministers, the Chief Justice, the Attorney General, the Controller and Auditor General, permanent secretaries, secretary to the Cabinet, and chairman of the Public Service Commission.

However, in the proposed constitution, the President cannot appoint or remove persons to these offices without the authority of the National Assembly.

An MP seeking the removal of the AG or any other member of the Cabinet may propose a motion requiring the President to carry out the dismissal supported by one quarter of the National Assembly.

If the motion is approved by the members, a committee of 11 MPs will investigate the matter.

If the investigations, which will take 10 days, are found to have substance, Parliament will give the AG or the Cabinet secretary a hearing and then vote on the resolution.

If it is supported by a majority of the members, the Speaker will notify the President, who will dismiss the office holder in question.

In the case of permanent secretaries, who will be known as principal secretaries, the President will pick them from among nominees recommended by the Public Service Commission.

However, the President will seek the approval of Parliament before appointing them.

The President has a freehand to dismiss the secretary to the Cabinet, although the appointment must be approved by MPs.

The current AG, Mr Amos Wako, will serve for a maximum of 12 months after the new constitution is passed.

The President will then be required to appoint a new AG in consultation with the Prime Minister and with the approval of Parliament.

The director of public prosecutions (DPP) is the only state official with security of tenure.The proposed law states that the holder shall be in office for a nonrenewable term of eight years.

A person seeking the removal of the DPP will have to present a petition to the Public Service Commission, which will determine its merit. If satisfied, the commission will send the petition to the President, who will suspend the DPP and appoint a tribunal to look into the allegations.

During the suspension, the proposed law says that the DPP will be entitled to half his remuneration until he/she is removed from office.

The Chief Justice and his/her deputy will be appointed by the President, as recommended by the Judicial Service Commission and with Parliament’s approval.

The new law indicates that the Chief Justice shall hold office for a maximum of 10 years. However, he or she shall retire after attaining the age of 70 years or any time after attaining 65 years.

The CJ can only be removed from office if a tribunal chaired by the Speaker of the National Assembly finds accusations brought against him true.

Evan Gicheru, the current CJ, will be required to vacate office six months after the new constitution is enacted. He may choose to retire or be vetted to allow him to continue serving in the Court of Appeal.

Parliament will also approve the appointment of the chairpersons and members of commissions and holders of independent offices, including the Auditor General and the Controller of Budget.

Send your questions and suggestions to: omathenge@ke.nationmedia.com

PS: This article first appeared in the Buzz Magazine inside the Sunday Nation on July 11, 2010. Check out the next article coming Sunday and remember to send your questions and suggestions to the address above.

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