President Mwai Kibaki
Patrick Njuguna and Charles Omanga say the appointments made by President Mwai Kibaki last Friday did not take into consideration gender, regional balance, public participation, competitive recruitment and representation of the marginalised communities.
The applicants argue that the appointments are in breach and ignore the express provision of the Constitution in particular Article 10(2) through the requirement for public participation and competitive recruitment.
The duo added that it was also done without consultation contrary to the National Accord and Reconciliation Act 2008.
“The inaction or failure to take action is a threat to the Constitution so they are seeking orders to quash the decision as published in the Friday’s edition of the Kenya Gazette Notice dated 11th May,” their application says.
They also seek an order suspending the implementation of the appointments and assumption of office pending the determination of the suit.
They also seek an order prohibiting President Kibaki and Internal Security Minister George Saitoti from implementing the decision until such a time that proper recruitment procedures are taken into account.
The two also want orders compelling Saitoti to comply with the Constitution and advertise the position of County Commissioners to ensure competitive recruitment.
Prime Minister Raila Odinga rejected President Kibaki’s appointment of the 47 County Commissioners, saying he was not consulted.
The Orange Democratic Movement National Executive Committee has also opposed the selection, arguing that they were not fair to all tribes.
The Commission on the Implementation of the Constitution (CIC) said the appointments should be conducted afresh because the president did not follow the spirit of the law in making them.
Commission Chairman Charles Nyachae said the restructuring of the provincial administration must clearly define the officials’ relationship with other offices such as county governors.
It should also involve other interested parties, such as his Commission and Parliament.
President Kibaki explained that the appointments were made in line with Section 17 of the Sixth Schedule of the Constitution.
The Section states: “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.”
The County Commissioners will coordinate security, national government functions and delivery of services.
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