THE Commission for the Implementation of Constitution has recommended that President Kibaki be prosecuted if he does not appoint commissioners to the National Land Commission.
CIC chairman Charles Nyachae said the President has defied several court orders and legal proceedings should be taken against him after he retires for failing the country.
Nyachae said a president only enjoys immunity in power but surrenders it after leaving office, according to the new constitution,
"If the President who has taken an oath to uphold, to defend and protect the constitution cannot comply with a clear directive of the court then the very essence of the constitution is in jeopardy," he said.
He referred to the February 4 court order that gave President Kibaki seven days to gazette the names of the NLC chairperson and commissioners.
Nyachae said President Kibaki was ignoring the sensitivity of land despite Parliament approving the names of the NLC.
"It is impunity on matters relating to land that generated the historical injustices that have cost our beloved country so much anguish and bloodshed. It completely befuddles the mind that any person with power to take measures to ensure that Kenya is on track to implement land reform and prevent further injustice elects to delay to take measures as required by law," he said.
Nyachae, accompanied by other CIC members, said Kenyans should not allow their democracy to be undermined by the impunity of a few who put self interest above public interest.
NLC is an independent body established by the constitution to carry out land reforms; manage public land on behalf of the national and county governments; recommend a national land policy; initiate investigations into present and past land injustices; and have oversight responsibilities over land use and planning.
It will be guided by the principles of National Land Policy, Land Act, Land Registration Act, the Environment and Land Act and a bill on Community Land.
Nyachae said the CIC has written to the Office of the President with no success. He said such defiance by the President just before the March 4 elections could have far reaching consequences.
"In recent days, there have been allegations of possible attempts at rigging the elections. There is no doubt that there will be election petitions. Failure by disputants to obey court orders arising from the petitions shall lead to a state of uncertainty and possibly violence," he said.
He said it was not the first time President Kibaki had declined to obey court orders saying the High Court had declared his appointment of County Commissioners unconstitutional as a case in point. Last week, Institution of Surveyors of Kenya chairman Collins Kowuo called on Kibaki to gazette the commissioners of NLC.