Appointments of County Commissioners illegal

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PAUL MWANGI

The appointment by the President of 47 County Commissioners has been widely condemned as unconstitutional.

However, most of the debate has centred on the issue of regional balance and proportionate gender representation. There are however more fundamental grounds on which these appointments have to be nullified.

Firstly, in Kenya there are no counties. The administrative unit called the county does not exist. Article 2(2) of schedule 6 states that the provisions of the Constitution relating to devolved governments are suspended until after the date of the first elections under the constitution.

One on the provisions in the Constitution that is deemed therefore to be suspended is Article 6(1) which says that the territory of Kenya is divided into counties.

The President has therefore appointed Commissioners to non-existent administrative units.

But the position of County Commissioner does not itself exist. Although section 132 (4) of the Constitution say that the President may establish an office in the Public Service, the section further states that he is to do so “in accordance with the recommendation of the Public Service Commission.”

This is a restriction to the powers of the President that has been inserted by the new Constitution. Under the old law, the President had power contained in Section 24 of the Old Constitution to establish public offices without reference to anyone.

There not having existed a recommendation of the Public Service Commission for the creation of the office of County Commissioner, the positions do not exist and the President has appointed people to non-existent public offices.

In the gazette notice, the President states that he is acting under Article 17 of schedule 6 of the Constitution. This article requires the National Government to 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”.

The creation of the positions of County Commissioner is not a restructuring of the Provincial Administration. Article 17 requires a restructuring that will make the system “accord with and respect the system of devolved government”. This is an in-depth exercise. Appointment of Commissioners is superficial. One must first restructure the system of administration then appoint people to it, not the other way round.

In any case, the obligation to restructure the system of administration is on the National Government, not the President. The National Government includes the Prime Minister who has not been consulted on this matter and the National Assembly.

Any attempt by the President to restructure the Provincial Administration without reference to the Prime Minister and to the National Assembly would be an usurpation of constitutional powers

The restructuring, when it is finally done, must be done within the principles of the new Constitution. These principles are contained in the National Values and Principles of Governance and include “participation of the people”. The unilateral decision of the President derogates these principles. The public must be involved in the restructuring of their government.

Section 1 (1) of the Constitution of Kenya states emphatically that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution”.

There is no constitutional leeway for the President to restructure the Provincial Administration without consulting the people and them participating in the exercise.

In fact, there is already a proposed National Administration and Co-ordination Bill which is being processed through the agreed system for promulgation of constitutional implementation bills. It is not clear why the President could not wait for these issues to be legislated into law before he makes the necessary appointments.

In his memorandum submitted to the Speaker of the National assembly dated February 27, 2012 refusing to assent to the County Governments Bills, 2012, the President said that he was going to undertake the restructuring of the Provincial Administration through a consultative process.

He wrote as follows: “Accordingly, the restructuring of the Provincial Administration can only be properly affected by the National Government after a thorough consultative process to ensure its alignment with the Constitution and other relevant laws. Although the Constitution allows five years for the completion of this process, the necessary consultations are already underway and shall be expedited”.

The action of the President appointing the Country Commissioners is a total contradiction to the constitutional position he has already taken as this issue.

Mwangi is the Legal Affairs Advisor to the Prime Minister.

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  • MkenyaMpya

    Thank you Mr Mwangi; yours has so far been the most succinct response to the illegal actions by our president.  MK and his advisors have obviously listened to this and other arguments but are unmoved.  The only way to enforce this requirement, and thus protect the rule of law, is for Raila, through you, to officially ask a court of law to block these appointments. Failure to follow the law is what doomed the independence constitution; we cannot tread that slippery road again…..

    • Nkkiprono

      difficult to understand—- this provincial administration,it will exist upto when?where will the current administartors be taken to? i think the president is right.

  • Jannadas

    It is so sad the President is taking our Democratic gain back to KANU times.These actions
    in future will have adverse effects to any who emerges from the Central Provience.The history
    will treat this President harshly,unfortunately.Any leader who does not put the interest of Kenyans
    before his own is a failure.

  • Mr. Paul Mwangi, now a loyal employee of merchants of deceit, has cleverly twisted facts as usual to mislead, if not to lie. First, government as the only authority in the land, has the right to anticipate change and act accordingly. Its instructive to note that these now county commissioners are sitting DCs whose tittle has ONLY been changed. However, a false impression that they are new employees single handedly picked by president has been created. Needless to say, all civil servants including administrators, are employed by Public Service Commission. Thats done through advertisement in the the media. Those interested in these jobs, with right qualifications, are requested to apply. That means everybody from every corner of the country has chance to join in. These DCs, now county commissioners, certainly went through this elaborate hiring procedure. The question of tribe, as fronted by merchants of deceit, disguised as equal representation and gender parity was never the issue here. Interest and necessary qualifications were the items. Of course, in any new hiring, the situation “might” change if applicants are there from both genders. And if our ladies shy off from these jobs, we wont certainly go around shopping them! Furthermore, how many sitting DCs are women today? Prime minister having acknowledged that he was not consulted, for it was not necessary any way!, cant pretend he could know about PSC’s internal memo to OP. And PSC cant interview afresh sitting DCs to please illogical people kept in the government for pacification! Civil service job continuation and even promotion cant be a matter of public debate and empty politics. Professionals cant be substituted by every tom and dick from each tribe! Its amazing if the hot air fronted as reform agenda, is supposed to see things in this ugly unprofessional tribal mirror! If this tribal aspect is the one eating deceitful merchants, they should surely tell us instead of beating about the bush. I thought people living in glass houses dont throw stones? Raila has lost numbers and is not even supposed to a pm! But he attempts to throw his weight about without caring we have had enough of his nonsense. He talks of “government will do this or that” when he doesnt seem to know how it operates. He claims not to have been consulted but himself doesnt consult! If he was ever keen on consultations, he wont be yelling in the press that he wasnt consulted. Consultation has to be a two way affair!

    • Boiyot

      Kwessi,
      Lets for a moment assume that you are right. Does that mean that the next president of Kenya can fire all these new commissioners and hire his/her own ‘qualified’ ones as was the case when Kibaki moved after Moi?
      I thought this new constitution and political dispensation was meant to take us away from unilateral decision making by a single individual.
      And if qualifications are solely the criteria used, why wasn’t everyone who could qualify for these jobs not given a chance to apply?
      It just smacks of arrogance and I hope one of the presidential aspirants can go on record right now that they’ll fire all of them and re-hire competitively!

      • You are getting confused in the process. I guess, you are arrested by vile propaganda spewed by merchants of deceit! These are not NEW PEOPLE HIRED by president Kibaki, they are civil servants only RELOCATED to county offices! Where is this “unilateral decision by one individual” in relocating? When need for new hiring checks in, PSC will have to follow the requirements of the constitution. The main issue here is that some mischievious fellows have created a scenario which is not there at all. They are used to setting fires that they cant control. We found ourselves engulfed by flames in 2007/8 because of this tribalistic attitude, pretentiously presented as “love and fight for us.” You must also note that, Raila has taken us in circles for far too long.  This has been done while feigning concern for us when in actual sense, he had only selfish interest. Infact, Mr. Okech Kendo’s article in the today’s (24/5/2012) Standard Newspaper, clearly captures his reckless adventures. Remember we are behind schedule in implementing constitution because of these cleverly presented selfish antics. We went without anti-corruption body for very very long period simply because Raila’s fellows were not amongst the nominated lot. And even after the nominees were eventually confirmed, Raila is far from being satisfied! Am sure you have noticed that several of his fronts have rushed to courts. And dont ever forget Raila himself agreed on nomination of those guys. He however, as usual, embarked on sabotage mission. Thats how the guys were turned to people without “passion” to fight corruption! Raila hardly has any reasons, other than sentimental, when assaulting our institutions. Am sure you do remember the justice Omollo saga. Only the other day, he was declared unfit to hold his office! Its noteworthy that Raila had set the country alight fighting for the same fellow. We should be able to seperate mischief from genuine issues pal. If president Kibaki had presented us with new set of employees, I would have easily joined you in saying NO to that adventure.

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