Pertinent issues you raise up there!

We are all advised to consult widely before reaching a decision!!!!!!
Interesting if it werent debilitating.

This represents some of the constitution shortcomings!
Whenever anybody attempted to highlight any such gray areas, during the run up to the referendum they were shouted down.

http://www.wazua.co.ke/f....aspx?g=posts&t=7699

@newfarer, asante 4 collecting ma big mouth...bt controversy is good, it ploughs up more opinions.

(2) A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.

According to the dictionary:
Consult: to go to a person for information or advice.
Consult with: to exchange opinions or information with someone.
Consultation: a meeting held to exchange opinions and ideas so that a decision can be made.

As per the above, Kibaks appoints, after consulting with PM, then Parliament approves


There is no where it states that consultation must always lead to an agreement with the person you are consulting with. Meaning that MK and RAO may have consulted but they never agreed. But since consultation took place, MK was the one with the authority of making a decision concerning CJ, AG, DPP. He now had the choice to use RAO's input or not.

Hence @mahe-goat, they dont have to agree. MK has the final word. No matter what others say, consulting and agreement are two different things and their correlation does not necessarily imply causation.

@ Jus Blazin
What you are interpreting is a word contained in a legal document – the Constitution.
You could also try going beyond the dictionary and plain meaning. Words are loaded.
http://en.wikipedia.org/wiki/Purposive_theory
http://worid-of-books.com/?id=E0uxBVW1cuUC (a whole book on purposive interpretation).

A word can mean whatever you want it to mean. So the big questions here are what did we want? What was meant? What was the spirit of that provision?

When we were in Egypt, the Courts insisted on intepreting the Constitution using the approach you are proposing...giving words their plain and literal meaning (Chief Justice Mwendwa. And the results were so unjust that the approach was abandoned several Chief Justices ago. More progressive approaches were adopted to breath life to the constitution. It will be interesting to see whether we lose all that progress because we have a new Constitution which has not been subjected to similar exercises in interpratation. If so, we're the losers here...

In 2004, an article by Githu titled “Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation” was published. He said in effect that constitutions (with their infinite variability in text, values, doctrine and institutional practice) may be interpreted differently by different yet equally well-meaning people.

I insist, words are flexible. They can shrink and expand. And words are tools.
The answer depends on whether this is politics or law. And whether we prefer the dictionary and technical interpretations over certain values. Not on your English or mine.

@petro, my point exactly. you've rephrased it quite well.

@For Sport, wachana na progressive, regressive and digressive theories. Now the below would definitely have meant agreement.

Bak's is so good at stirring up sh*t.

The biggest issue here is that he is messing around with the constitution.

Personally, I think the burden is on Bak's to prove to meet the constitutional demand for 'Consultation', if RAO says they have not consulted then Bak's needs to demonstrate that they have.

Does consultation mean agreement? I don't know, may be that's why the constitution has a constitutional interpretation court. Thats where RAO/Kenyan's/any other interested persons should be headed before the names go to parliament.

My biggest disappointment in all this is that the nominees have not declined the appointments.

When Baks and RAO meet during the so called "consultation" do they always record the deliberations?If so then Baks should simply send the tapes to media houses to cool the sh@%$^t once for all!

WAZUA ADVISORY: Please don't ask lawyers to define that simple word 'CONSULTATION,' a young strappling lad will have grown into a guka with toothless grins before they can agree on a common definition.

I really detest this crap of principals, accords and consultation. Can't wait for 2012 to see it consigned to the dustbin of history, assuming that is, that AU currently in Addis does not make it the official power-sharing deal for africa's tinpot dictators who lose elections.

BTW, someone enlighten me, was RAO supposed to consult Baks (as a fellow principal representing Kenya) before taking up appointment of the AU's envoy on doomed Cote d'Ivoire mission? Should he or shouldn't he have, either legally or as gentleman, before taking up the mission?

Very sad day for our country. The appointments should have been made after a competitive selection by the judicial service commision and consultation between the 2 principals. In Baks bid to pull the carpet from under the ICC feet and at the same time leave an egg on Rao's face, he makes the appointments after sending an SMS to Agwambo. Am not a Rao fanatic but I deeply feel that Baks actions were not only contemptious but also unconstitutional!
Am hoping that Ghai and Davinder suceed in court to block Baks appointees failure to whick Rao may use Marende to frustrate the debate on the 3 in the house.

@Ngalaka, thanks for pointing out what the opponents of the new constitution tried to bring to light way bank in July/ August last year but were drowned in emotive arguments. We have a constitution prepared to please everyone and it's implementation will just get trickier as we go along. To massage RO's ego, we pretended to give him a role in the implementation of the constitution while in actual sense he has no role other than as an MP. He can be consulted but this does not guarantee that he will take the final decision. He thinks 'consulted' means he is to be co-president. Sorry to burst your bubble Mr. Right honourable.

That said, the nominations are a sad day for Kenya. The implementation of the constitution will now be hostage to political machinations. With RO almost certainly neutered by the exit of the RV crowd from ODM, I doubt love for Kenya will prevail in the implementation phase.