The chairman of the Constitution Implementation Committee (CIC) Charles Nyachae has asked the President to appoint commissioners to the National Land Commission (NLC) in accordance with the constitution.
Nyachae in a statement said that president Kibaki's continued failure or refusal to constitute the NLC is impunity of the highest office of the land and that the president who is set to retire once the new government comes into power after the March 4 elections, is at risk of marring his legacy.
The CIC chairman stated that the president has no reason not to have appointed commissioners and a chairperson to the commission that is mandated with the task of managing public land on behalf of the National and County Governments, recommending a national land policy to the national government, initiating investigations into present or historical land injustices, and recommend appropriate redress, and monitor and have oversight responsibilities over land use planning throughout the country.
Nyachae pointed out in his statement that by failing to comply with court orders directing him to form the NLC, the president is undermining the constitution which all Kenyans irrespective of station are bound by.
"Indeed the principle of rule of law that is enunciated in article 10 of the Constitution means that no person including the President is above the law," Nyachae said.
The CIC chair further said that the president's actions are likely to negatively influence the strides made by judicial reforms and constitutional implementation.
"Disobedience of court orders by the highest office in the land can only erode the confidence Kenyans have began to develop in the new judiciary," Nyachae said. Nyachae pointed out that this is a dangerous precedent to set in light of the proximity to the March 4 general elections.
"In recent days, there have already been allegations of possible attempts at rigging the elections on March 4, 2013. There is no doubt that there will be election petitions. The failure by disputants to obey court orders arising from election petitions shall lead the country to a state of uncertainty and resort to self help strategies including the perpetration of violence by those in whom the court does not grant a favourable award," Nyachae said.
He pointed out that this is not the first court order the president has failed to comply with. The president last year appointed county commissioners, but was ordered by the court to cancel the appointments.
Attorney General Githu Muigai who is the government's legal advisor asked the president to adhere to the order, but the president is yet to revoke the appointments.
Nyachae cautioned president Kibaki that the immunity from prosecution he enjoys while in office expires once the new government comes into effect and that legal proceedings can be instituted against him for contravention of the constitution.
He further added that if the president is being advised not to constitute the land commission by organs other than the AG and the ministry of lands, then such bodies should be identified and face the law.
"It must be correct to assume therefore that such advice as the President is receiving on these matters, must be emanating from elsewhere other than the Ministry of Lands and the Attorney General. Public accountability requires that any person or persons who has advised the President to, either by omission or commission, negate the rule of law and not put the constitution in jeopardy, be identified and held to account. That said, the President must carry the constitutional responsibilities of his office," Nyachae said.