The ill-fated attempt by President Kibaki to nominate candidates for a number of high constitutional offices has several lessons for the country. The ability to learn those lessons will go a long way towards consolidating the gains that the new constitution promises all of us.

First, there is no doubt that in this whole episode, the president’s intentions have been frustrated and that he has suffered great personal humiliation as a result. Within his office, there should follow a serious inquisition as to what went wrong, so that the president is saved from further embarrassment in the future. In the nature of things, those around the president, and who provided the advice that led to this controversial outcome, will blame everyone other than themselves for what has happened. They will, for example, blame the Speaker of the National Assembly and those members of the parliamentary committees that did not support the president’s position as to the nominations in question. Yet, if they are to be honest with themselves, they should recall that a number of independent bodies like the Committee on the Implementation of the Constitution, the Judicial Service Commission, the Attorney General and even Justice Daniel Musinga have all variously come to the conclusion that the process used for making these appointments was irregular and that those appointments could not, in the circumstances, stand. The question that they would then have to answer is: how can so many different people be wrong and only the president’s men are right?

To be honest, this whole incident has demonstrated that President Kibaki is now hostage to those on whose advice he relies. If he is to save his presidency, he needs to realise that the problems are within his inner circle, and not with the various public institutions that have stood up to oppose his wishes. He, therefore, needs to carry out a purge on his advisors before they completely ruin his legacy.

President Kibaki can borrow a leaf from former South African president, Nelson Mandela, on how presidents deal with unexpected setbacks to their presumed authority. As president of South Africa, Mandela’s decision to appoint a commission of inquiry into the affairs of the South African Rugby Football Union became the subject of litigation with the court finally requiring the president to present himself for cross examination in court. By all accounts, Mandela’s decision to accept the summonses, far from diminishing him, is regarded as having contributed to his substantial stature. In another case, when South Africa’s Constitutional Court ruled that President Mandela had exceeded his authority by attempting to amend a provincial government order, Mandela responded that “the judgment of the Constitutional Court confirms that our democracy is taking firm root and that nobody is above the law. This is something of which we should be proud and which the whole of our country must welcome.”

Those in Kibaki’s corner are dissatisfied with the Speaker’s ruling and have indicated that in the coming week, they will seek new ways in which to extend the strife that has been going on in the National Assembly. The spectre of an angry Deputy Prime Minister, Uhuru Kenyatta, is the abiding representation of the feelings on the part of those in the president’s side. The president can quickly and easily put an end to this by publicly stating his support for, and readiness to abide by, the ruling by the Speaker. Nelson Mandela, a great president by any standards, did so on many occasions.

While still on the responses to the Speaker’s ruling, a lesson for Uhuru Kenyatta can be stated here. Uhuru has said he would like to be the president of Kenya, a position which will give him immense power over all of us. Yet, Uhuru’s performance on television was petulant and far below the positions he currently holds and those to which he aspires. Uhuru Kenyatta has come a long way since Moi thrust him on the country as his project but he still has some way to go. Particularly, he will need to invest in self control, something that his ally, William Ruto, has learnt very quickly.

Another lesson from this debacle should go to the various constitutional organs that have taken a position on this matter. Every time an independent constitutional body bungle on its mandate, there is trouble for the country. There was trouble when the former ECK was unable to lead the country into credible elections in 2007. As if there had been no lessons from this, trouble also followed when one of its successor commissions, the IIEBRC blundered on its responsibilities. The lesson for the country is that when independent organs uphold their mandates as has happened in this case, our stability as a country is saved. In the future, only enlightened leadership will save the country from the capture that threatens it from all sides.

The fourth lesson is for those that were the subject of these nominations, and who now face an uncertain future, when they may have assumed that they were on the way to new responsibilities. At one level, these can claim that they are the unfortunate victims of a process that went wrong, and that they are not the authors of any shortcomings that the process may have had. The question is: if the Speaker had ruled that the nominations were lawful and that Parliament could go ahead with the approval process, would they have heeded the many calls that were made to them that they should, in the interests of Kenya, reject the nominations and thus pave the way for a fresh start? The answer to this question will always be speculative, but I believe that they were prepared to ride their luck, irrespective of these objections. Can one then say that these individuals represent the qualities that we would like to see in the country’s chief law officers? I doubt myself. The conclusion to be made is that the opportunistic conduct of these gentlemen may be regarded as having knocked them out of the reckoning when these positions come up for filling.

The next logical question is what should happen next, in view of the Speaker’s ruling. The process for the appointment of the next Chief Justice is clear: the Judicial Service Commission will now advertise the position, as had been intended, and hopefully applications will be received from persons that merit appointment to this high office. All the big decisions in relation to this appointment will be made by the JSC, to whom I address the next lesson. The main reason for the removal of Justice Gicheru as Chief Justice, in my view, is the loss of confidence that he suffered as a result of the manner in which Kibaki was sworn in as president for his second term. The greatest sensitivity for this position is in relation to the next general elections. Given the deep suspicions in the country at the moment, the JSC should consider, as an interim measure, a Chief Justice from the Commonwealth, who will serve for, say, three years and oversee the forthcoming elections. The next president can then have the pleasure of appointing a successor chief Justice in 2013, when the country will, hopefully, have stabilised from all the threats that it currently faces.