Cord accuses President of seeking to circumvent ruling on controversial security law.
President Uhuru Kenyatta named his nominee for Inspector-General of Police, Mr Joseph Boinett on New Year’s eve to avoid the possibility of court orders stopping him from invoking the powers given by the controversial security law, the Opposition has claimed.
On Friday, Justice George Odunga is set to rule on whether the controversial law is constitutional.
He will also rule on whether its implementation should be put on hold to give the Opposition and the government time to argue out their cases in court.
Mombasa Senator Hassan Omar and his Siaya counterpart, Mr James Orengo, said Jubilee will find itself in an uncomfortable legal position if the court suspends the controversial Security Laws (Amendment) Act on Friday.
“Without second-guessing what the court will decide, it is clear that part of the strategy to rush this appointment was to try and circumvent, in the event that the court was to order a stay,” he said in a telephone interview.
Cord and the Kenya National Commission on Human Rights (KNCHR) have petitioned the High Court to rule that the law was unconstitutional.
But first, they have asked the court to issue orders stopping its enforcement.
Specifically, the commission has asked for the nomination of the IG under the new laws to be stopped.
Mr Orengo, who is representing the litigants in the case, said Mr Joseph Boinett’s appointment could stall if the court suspends enforcement of the law.
“If there is an order, the President will be caught up. What he has done is nomination but there is still a long way to go,” he said.
According to him, the nomination could also be withdrawn if, at the end of the case, the court rules that the security law is unconstitutional.
“Remember when President (Mwai) Kibaki nominated a CJ and AG in 2011 and later withdrew the nominations? There is that possibility,” he said.
But Elgeyo Marakwet Senator Kipchumba Murkomen argued that while the President may have taken advantage of the security laws to nominate Mr Boinett, the provision in the Constitution gave him the powers to nominate.
“The section on the appointment of the Inspector-General of Police is very clear. It says the President shall nominate and Parliament approves,” he told the Nation.
Mr Murkomen, a lawyer, also argued that even if the High Court at the end declares the Security Laws (Amendment) Act unconstitutional, this will not affect the entire legislation.
“Remember that Cord captured specific sections of the law and the courts will handle that,” he said.
He also said the delay in naming Mr Kimaiyo’s successor was creating anxiety and the President had acted at the right time.
Meanwhile, sources told the Daily Nation that President Kenyatta consulted Kalenjin MPs before settling on Mr Boinett as Mr Kimaiyo’s successor.
The government sources said that unlike the events which led to Mr Kimaiyo’s early retirement, this time round, the President had consulted MPs from the Rift Valley before nominating Mr Boinett.
Leaders from Elgeyo Marakwet had threatened to walk out on Jubilee if their county was overlooked in the hiring of Mr Kimaiyo’s successor.
On Thursday, Majority Leader Aden Duale said he was waiting for a signal from the President on whether to recall the National Assembly for a special sitting to vet Mr Boinett.
“If the Executive feels the matter is urgent, then they will ask me to see whether I can recall the House for the message to be read,” said Mr Duale.