State washes dirty linen in court

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Updated 8 hrs 15 mins ago

By Judy Ogutu and Peter Opiyo

In the final months before its term lapses, it is now clear the disharmony in Grand Coalition Cabinet has found its way into the President’s party.

This was discernible on Tuesday as one wing of the President’s inner circle, led by acting Minister for Internal Security and Provincial Administration, Yusuf Haji, went to court to defend the controversial appointment of 47 county commissioners by the President after the High Court nullified it.

Taking that the minister who holds the portfolio, which is directly under the Presidency and is housed at Harambee House, takes his orders directly from the President, it looked odd that as he appealed, the Attorney General who also reports directly to the President took the opposite view of the appeal.

The position of Prof Githu Muigai reinforced his earlier view that he had not been advised when the list was drawn, reportedly by acting Head of Civil of Service Francis Kimemia. The AG declared he would not appeal the ruling by a High Court judge that the President acted outside his powers and the appointments were unconstitutional. 

Whereas the AG is not a politician, by virtue of his position as the Government’s chief legal advisor, it is assumed that on coalition affairs, he would stand by the President, remaining party to his decisions on management of public affairs.

On Tuesday it was another case of top Government officials washing their dirty linen, not just in public, but also in the courtroom.  Muigai appeared before Justice Mumbi Ngugi and told her that the State would comply with her order annulling the appointments and would not appeal.

But Haji and acting Internal Security Permanent Secretary Mutea Iringo, who had appeared to defy the court by asking the commissioners to ignore the ruling, sent a private lawyer, Kibe Mungai, to represent them at the same proceedings where the chief legal advisor had ruled out appeal. Mungai countered the AG’s position and told the same judge that he was under instructions to appeal.

The move baffled Justice Ngugi, as she questioned Mungai whether the PS had an interest outside his position and therefore had to instruct a personal lawyer.

 “Does he have capacity that entitles him to act independent of the AG and instruct counsel?” the judge asked.

Lawyer fees

Mungai responded by saying orders had been sought against Iringo and he was made a party to the case.

He further argued his client was acting on his individual capacity, as an interested party since he had been enjoined. 

But one question remained unanswered: Will Iringo pay appeal fees and with whose blessings did he and Haji agree to push the appeal against the ruling?

The appointments were made without consultation with the Prime Minister, and they did not meet the one-third-gender rule, as the law requires.

Government insiders believe Haji and Iringo could not have taken such a step without President Kibaki’s knowledge.  The ministry, which is among the most critical particularly on security matters, is directly under the President’s supervision, and is in his wing of the Grand Coalition Government.  Haji equally made good his threat to ignore the AG’s legal advice and went ahead to file a notice of motion appealing against the order.

In the notice filed at the High Court, Haji through Mungai said the judge was wrong in sending the officers home.

Mungai said the decision was based on misconception of Transitional Provisions of the Constitution as per Schedule Six. “The decision was founded on provisions of the new Constitution that have been suspended,” added Mungai.

However Githu’s representative at the proceedings Stella Munyi told Justice Ngugi: “My instructions are that we are ready to comply with the court judgement. We stick to our original decision of compliance.”

Breach constitution

Munyi further informed the judge that the AG’s position was that it was only him who has the power to represent the Government.

Iringo told the court he wants a case seeking to compel him to comply with the court order amended for him to respond appropriately.

His advocate Mungai said: “He (PS) wishes to be named personally and he needs to give instructions, he is not named as a party.”

Two people – Mr Charles Omanga and Mr Caleb Okech – have filed an application at the High Court claiming that the Internal Security PS instructed the said commissioners to disregard the order of the court in spite of acknowledging it.”

“The action by the PS is potential breach of the Constitution and the applicants have a right under the right of access to information pursuant to Article 35 of the Constitution to information sought in the orders hereinabove,” their advocate, Anthony Oluoch said.

Consequently they want the court to issue an order directing the PS to file a gazette notice revoking or withdrawing the appointments of 47 county commissioners. Mungai urged the judge to strike out the application by the two activists, saying it was incompetent.

In response, their lawyer requested Justice Ngugi to allow them to amend it. The request was granted, and hearing date fixed for July 27.

Prime Minister Raila Odinga, who leads the other wing of the Grand Coalition, hit out at Iringo for telling the commissioners to ignore the court order that had declared their positions unconstitutional.

Raila told off Haji on plans to appealing, a position that was also taken by Justice Minister Eugene Wamalwa. “The Government is appealing the ruling and the Prime Minister is not aware. That is nonsense,” declared the PM when he commented on the matter last week. He further said according to the Constitution, the restructuring of the Provincial Administration should be undertaken after the General Election.

Key support

Raila insisted county commissioners could work without governors, adding that the National Government that should restructure the Provincial Administration is not yet in place.

He maintained that the restructuring of the Provincial Administration should be done after Devolve Government system is constituted.

But President Kibaki received support from, among others, Energy Minister Kiraitu Murungi.  He supported the appeal, saying Iringo was right.  He said it is common for clients to disagree with their advocates.

Assistant Minister Kazungu Kambi, Wajir East MP, Adan Keynan, and his Mount Elgon counterpart Fred Kapondi hit out at Muigai and Wamalwa for opposing appeal.