By Jacob Ngetich

NAIROBI,  KENYA As President Uhuru Kenyatta unveils his list of Cabinet Secretaries, he will not be able to restructure some offices.

Under separation of powers espoused in the Constitution, the Head of State will not have powers to influence the Judiciary, a privilege enjoyed by his predecessors.

Former President Kibaki had powers over the Judiciary until after promulgation of the Constitution and his move to single handedly appoint the Chief Justice was thwarted.

Kibaki had nominated Justice Alnashir Visram as CJ, Mr Kioko Kilukumi as Director of Public Prosecution, Mr William Kirwa as Controller of Budget and Prof Githu Muigai as Attorney General, but his co-principal Prime Minister Raila Odinga challenged the appointments.

And even when the names were taken to Parliament former Speaker of the National Assembly Kenneth Marende declared the controversial appointments unconstitutional.

“The President and the Prime Minister needs to bring forward a new list of nominees to the crucial constitutional offices, it is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its committees or by a vote on a Motion in the House,” said Marende.

Security of tenure

It was after the formation of the Judicial Service Commission that the current Dr Willy Mutunga was procedurally appointed Chief Justice.

Section 167,  (1) A, states that a judge shall retire from office on attaining the age of 70, but may elect to retire at any time after attaining the age of 65.

“The Chief Justice shall hold office for a maximum of ten years or until he retires,” reads part of the Constitution.

The Inspector General of Police’s office is also independent and only answerable to the National Police Service Commission.

Inspector General David Kimaiyo, unlike former Police Commissioners who were at the behest of the President and could be replaced with just an announcement on the radio, will be answerable to the commission that ushered him into office under the parliamentary Act of National Police Service Commission 2011.

Other offices that enjoy security of tenure are National Intelligence Service (NIS), Kenya Defence Forces and the Governor. The office of the NIS Director General which was created under the Act of Parliament as National Security Intelligence Service (NIS) in 1998, replaced the former Directorate of Security Intelligence which was commonly known as the “Special Branch” and which was part of the Kenya Police Department.

According to the Act, the director general of NIS holds office for a term of five years and shall be eligible for re-appointment for one term.

The Act states that the President shall remove the Director General from office on grounds of violation of the Constitution, gross misconduct, if the holder of the office is convicted of an offence and sentenced to imprisonment for a term of at least six months or when declared bankrupt.

“Before the removal of the Director-General under subsection (2), the President shall appoint a Tribunal in accordance with the Second Schedule and refer the question of removal of the Director General to the Tribunal, which shall investigate the circumstances giving rise to the proposed removal; and make recommendations to the President,” reads part of the Act.

Appointment

In January 2011, former President Kibaki reappointed Maj Gen Michael Gichangi for another five-year term.

According to Mr Dismas Mokua a political analyst, the President did not have the powers to appoint or dismiss commissioners.

“The commissions were created constitutionally and they have the procedures for the appointment and dismissal of their commissioners and therefore the President cannot decide to do away with them when he feels irked,” said Mokua.

He said Central Bank of Kenya (CBK) Governor’s office also enjoyed security of tenure and the holder would only be removed after recommendation by a tribunal formed by the President. 

“Some decisions the Governor makes are far reaching sometimes and there those who formulated the law so the need to ensure that the occupier of the office would not be swept away by the Executive or the legislature,” he said.

Last year some Members of Parliament called for the sacking of CBK Governor Njuguna Ndung’u, accusing him of presiding over the record fall of the shilling.

However, the long procedure for his removal distracted the MPs.