County Commissioners in Office against the law

Kenya’s fourth President, Uhuru Kenyatta took over leadership which had an existing stand-off between the eminent governors and the Provincial administration in the office of County Commissioners.

It would be remembered that It was during the Naivasha retreat that the Governors expressed that were not happy with the existence of the Government appointed County Chiefs. The issue led to a rocky end of the Grand Coalition Government which elapsed with the swearing in of Kenyatta as President.

The law provides for interdependence between the county governments and the national governments and therefore some analysts argue that the County Commissioners are in office in various counties against the law.

 According to a legal scholar, Silas Aluku, “The question of law that arises is whether or not restructuring as contemplated by Section 17 abolishes the system of provincial administration? Looked at in the context of the entire constitution and specifically so the substantive part thereof the said system of PA is not provided for and even section 17 itself does not contemplate giving life to it.”

The scholar argues that it was unconstitutional for the former president to have created the offices of the County Commissioners despite the law not existing.

The County Commissioners came in office for the first time in 2012 via a gazette notice and assumed office during the Madaraka Day on June 1 the same year and took the role of super District Commissioners in their Counties.

He further argued that the law provided for five years before the president created the office.

“An argument for the constitutionality of the 11th  May Gazette notice for the appointment of the county commissioners is handicapped because, first, article 132.4.a itself limits the powers it confers to the President in that any action within the whims of the article must be initiated by the Public Service Commission [PSC],” says Aluku.

Under Article 132.4 (a) of the constitution states that “the President may perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission.’’

The main question that remains unanswered is whether they are allowed by the constitution to execute powers to the non-existing legislation?

“The 2010 supreme law does not stop at requiring the PSC to advise the President on establishment of an office under article 132.4.a, in the current constitutional arrangement, the requirement for public participation is so fundamental that a lack of is enough ground to declare an administrative act unconstitutional”, states Aluku.

President Kenyatta during his inaugural speech said that he truly remained committed to uphold devolution envisaged in the constitution that he swore to protect. According to the lawyer, the Kenyan constitution does not make the country a federal republic but creates a devolved unitary republic.

 

“Argued in this sense the appointments can be justified in that the national government still has overriding control over the county governments. The governments are interdependent and therefore they shall conduct their mutual relations on the basis of consultation and cooperation,” Aluku asserted.

The appointment of the county commissioners was purportedly done in compliance with section 17 of the sixth schedule to the Constitution which reads within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the devolved government established under this constitution.

Former Prime Minister Raila Odinga differed with President Mwai Kibaki on the existence of the county commissioners citing that:

“Kibaki’s remarks are a testament of the people in government who still want the old order of concentrating resources in the centre. I urge County bosses to resist this plot to take Kenya back to the old order,” said Raila Odinga.

The county commissioners who initially received hostilities last year after their posting from former MPs have now re-established themselves in the DCs offices of former headquarter district of every county.

 

Despite the high court ruling that the appointments were not done reflecting gender balance the Attorney General Prof Githu Muigai appealed and today the commissioners are comfortable as County security chairmen and administrators taking orders directly from the president down to the village headmen.

Former Government spokesman and now the Governor of Machakos County have ever since rejected the office that the transitional authority gave him and instead continue to operate from his secretariat leaving the office at the Machakos Municipal Hall office for his deputy Bernard Kiala.

On this issue Aluku says the government over anticipated offices and the process was meant to be phased giving a time difference of five years

“Even if the appointments were to pass the consultation and regional as well as gender balance test, as currently constituted they would fail for purposes of the spirit of sec 17 vis-à-vis that of the devolved system of government, if interpreted conjunctively,” said lawyer Aluku.

 Aluku puts it factually that the constitution vests county executive powers on the county executive committee headed by the county government [art 179.2]. The county governor is the head of the county and enjoys such powers at the county level as would be enjoyed by the president at the national level.

 

Raila Odinga of CORD argued that “Article 6(2) of the Constitution talks of two levels of governments-the national and County which distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.”

“Let us get this clear. It is the system known as the provincial administration which was to be restructured to fit in to the new constitution, not the other way round,” Odinga said.

The ball now rests with President Uhuru Kenyatta to shed more light on the presence of his lieutenants in the County offices and put the issues in order as Devolution gets underway.

Published 12^th February