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Published Thursday, May 17 2012 at 00:00
By Martin Mutua and Vitalis Kimutai
President Kibaki’s unilateral and unpopular decision to appoint 47 County Commissioners has put the spotlight on his final months in office, and the kind of advice he is getting.
With top Government officials who should have been involved in the exercise saying they were not consulted, Kibaki’s list of 47 is in jeopardy.
The situation is compounded by claims the nameson the list were largely handpicked by acting Head of the Civil Service Francis Kimemia and were the same ones rejected last year when he was the Internal Security Permanent Secretary. Those watching the unfolding events keenly recall how the final months of previous occupants of State House were characterized by unilateral and unpopular decisions that polarized their relationships with both friend and foe.
The matter now gains added urgency with a general election due in just a year.
Civic organisations have lined up suits and court petitions challenging the appointments which were gazetted on May 11, and which have put President Kibaki on a receiving end (see story on Page 11).
Why did President Kibaki not consult both Prime Minister Raila Odinga as well as Attorney General Prof Githu Muigai before making his decision?
And why the rush to restructure the Provincial Administration ahead of the general election due in March next year? Mr Titus Bitok, a law lecturer at Moi University, said Kibaki’s move is a gross violation of the principle of consultation in the Grand Coalition Government.
“The root cause of the standoff is traced back to the legal mechanism that forced Kibaki and Raila to form a Coalition Government. It is a clear but unfortunate case of the right hand not knowing what the left is doing,” Bitok said.
block appointees
Bitok said Kibaki would more likely be forced to revoke the appointments, as he must horse-trade with Raila on the matter.
“Kibaki seems to be more worried about what would happen to him when he leaves office and he might want to have people in influential Government positions who are friendly to him –that is why he is playing politics with the appointments,” Bitok said.
There are also claims that some of those appointed were too junior to hold the positions, with six of them being acting District Commissioners.
Trade assistant minister Manson Nyamweya and Vihiga MP Yusuf Chanzu opposed the appointments saying the Bill to outline the county governance structures is yet to be reviewed after Kibaki rejected it.
Nyamweya, who is also the South Mugirango MP, said Kenyans opposed to the appointments would be mobilised to block the appointees from their offices.
“The hurry to appoint County Commissioners without regard to the rule of law and procedure raises serious issues,” Nyamweya said.
The Standard has authoritatively learnt that following the rising heat over the appointments, President Kibaki is now seeking the legal opinion of the AG on the matter.
The move also been rejected by Prime Minister Raila Odinga whom the Head of State is supposed to consult when making such appointments by virtue of the National Accord that anchors the Grand Coalition Government.
Raila is on record as saying he was never consulted when the appointments were made and so rejected them. Internal Security minister Prof George Saitoti cancelled a last minute press briefing he had called on Tuesday evening over the matter.
Also having been kept in the dark was Justice and Constitutional Affairs Minister Eugene Wamalwa who also expressed his reservations over the appointments, terming them irregular.
Impeccable sources told The Standard the AG was kept in the dark over the appointments with the prime actor behind the scenes being Kimemia.
Whereas the buck stops with President Kibaki, it also begs the question: Who within his inner circle delivered the list of names and what was the motive behind the rushed appointments?”
Our sources within Government disclosed that the AG, who was out of the country in Addis Ababa attending an official function, has now been asked for his legal opinion by State House.
“It is true that the AG was not consulted over the matter, but the Office of the President has now written to him seeking his legal opinion and the letter is on his desk awaiting his return today,” added our sources.
The AG was expected in the country on Wednesday. The matter raised heated debate in Parliament with members questioning the rush by Kibaki yet legislation to operationalize the county administration is not in place.
There is growing concern that the President and a clique surrounding him are keen on installing their allies in key positions a few months before he leaves office to retain their influence on State House.
radical claim
During President Kenyatta’s last year in office, a group of leaders then referred to as his “kitchen Cabinet” attempted to manipulate the Constitution to control his succession and block his deputy Daniel Moi from automatically taking over.
That they failed was ultimately due to the dogged resistance of the then Attorney General Charles Njonjo, who was the first to make the radical claim that to imagine the death of a sitting president amounts to treason.
So who in Kibaki’s “kitchen Cabinet” has his fingers in the State House pie today, and what is the agenda?
For now, all fingers seem to point at Kimemia who appears to be increasingly isolated on the matter after having defended the appointments saying they would ensure smooth running of National Government’s affairs at the counties.
“President Kibaki simply converted the Regional Commissioners to the County Commissioners to co-ordinate other County heads of departments already deployed on the ground,” Kimemia said.
He further stated that he had directed all Permanent Secretaries to deploy County heads of department within the next two months.
However, those questioning the move say these are totally new offices that must be approved by Parliament through passing of necessary laws.
They say the County Commissioners cannot be regarded in the same light as the County Education Directors that the Ministry of Education has deployed, and who are currently undergoing training in Mombasa.
“The Terms of Reference for the County Commissioners are cognizant of clear distinct functions in Schedule Four of County Government and National Government after the general elections,” said Kimemia when defending the appointments.
respect system
While making the appointments on Friday, State House claimed they were in line with Section 17 of the Sixth Schedule of the Constitution.
The sections says: “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 system of devolved government established under this Constitution.”
Eldoret North MP William Ruto appealed to President Kibaki and Prime Minister Raila Odinga to consult over the appointments terming the debate as “baseless and arousing unnecessary tension”. He advised the two to resolve their differences amicably away from the public, saying the Constitution was very clear on the appointments by the Executive and asked the two principals to spare the country unnecessary tussles.
“They should sort out their matters through internal memos and not through the media,” he added.
Fisheries minister Amason Kingi and Coast Parliamentary Group vice chairman Gideon Mung’aro dismissed the appointments as unconstitutional.
Of the 43 Kenyan communities all the appointments are divided among only 12 communities, with one community getting 30 per cent of the positions.
issues of integrity
Kingi and Mung’aro said that if the list is not changed to conform to the Constitution, which requires regional, ethnic and gender equity, they would take the matter to court.
“Not even a single Mijikenda has been appointed. Are they telling us to look for another country?” Kingi said of the nine coastal tribes whose population is more than a million.
He said Coast MPs will mobilise and challenge the appointments in court arguing that with Kenya’s 42 tribes, each tribe can get a slot.
A political science lecturer at Kenyatta University Mr Joseph Magutt, said it was sad that Kibaki was still operating with the old Constitution in mind.
“The list of the appointees is not reflective of the ethno-regional balancing as it is dominated by members of one community, which raises issues of integrity and confirms fears that the Executive is out to entrench certain partisan interests,” Magutt said.
The political analyst stated that vetting was necessary before the appointments were made.
“I wonder what role the Attorney General as the chief advisor to the Government played on this matter, if indeed he was not consulted.”
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