Fate of county bosses hangs in the balance

By Jacob Ng’etich

NAIROBI,KENYA: The fate of the County Commissioners and their juniors hangs in a precarious position following a legal onslaught to have them relieved of their duties.

In the second lawsuit almost a year after their positions were declared illegal, a similar petition that seeks their removal was presented to the High Court in Nairobi this week by the Law Society of Kenya (LSK). The LSK is seeking to have the entire office of the Commissioner and Regional representatives, formerly Provincial Commissioners, AssistantCounty Commissioners, Chiefs and Assistant Chiefs  declared illegal.

According to LSK, the move is to give way to the independence of the devolved governments without interference from the national government. In June last year, the High Court declared the appointment of County Commissioners by the then President Kibaki as null and void. However, the Government then disobeyed the court order and retained them in office. It will, therefore, be of interest to see whether the court will uphold its ruling and send the officers home.

The lawyers argue that the offices were inconsistent with the Constitution, which requires the national government to structure administration units that respect devolution.

The suit plays into the war that was triggered by Governors at a meeting in Naivasha, with the civil society petition insisting that the Public Service Commission move to appoint County Commissioners, Assistant County Commissioners, Chiefs and Assistant Chiefs should actually be left to Governors and County Assemblies. “The petitioner prays for an order that Provincial Administration purported to be structured under the National Government Co-ordination Act 2013 be deemed to be appointments under the County Government Act 2012 and accountable to the Governor and County Assembly,” read the petition.

Joined fray

In a heightened onslaught, the Muslim for Human Rights (Muhuri) lobby joined the fray last month, questioning the legality of the County Commissioners. The lobby asked Transition Authority (TA) Chairman Kinuthia Wamwangi to force them out. “The TA is a constitutional body, expected to respect the law and adhere to the Constitution. It will be regrettable should it perpetuate an illegality and condone the defiance of a court order,” the letter reads.

The sections of the National Government Coordination Act 2013, according to those against the appointments, are unconstitutional because they undermine devolution as envisaged by the Constitution.

Section 15 and 20 of the Act sets out the appointment methodologies for County Commissioners and their assistants together with chiefs and their assistants placing them under the national administration.

“These sections are accordingly null and void to the extent of the inconsistencies and all appointments by the 2nd (PSC) and 3rd respondents (Attorney General) to offices created under the said sections are invalid, null and void,” argues LSK.

Governors have been accusing the national government of attempting to usurp their roles as set out by the Constitution. They feel there should be a clear separation of power between the two systems.

While addressing governors in Naivasha during induction, Attorney General Githu Muigai raised concern on the presence of County Commissioners and its lineage arguing it would undermine the governors.

Prof Muigai said the commissioners were appointed under the old law, but was still investigating whether they have been factored in the new dispensation. According to him, the law was clear and governors had the authority to execute their mandate.

“Governors will be responsible for the running of the counties as far as the law is concerned and I don’t know where the other reports are coming from,” said the AG.

This move will likely also affect the regional representatives formerly the Provincial Commissioners, who had been given a lifeline by the previous regime in the new devolved government structure.

According to PS Mutea Iringo, the regional representatives were supposed to be in charge of the coordination of national government activities in a cluster of counties. Iringo said to ensure a smooth take off of the counties, regional representatives would be in charge of a number of counties while the chiefs and their assistants will retain their roles as the rest of the Provincial Administration is restructured and aligned to the Constitution.