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.