NAIROBI, Kenya, Jul 12 – The Internal Security and Provincial Administration Minister has ignored legal advice by the Attorney General and has now filed a notice to appeal against the High Court decision that declared County Commissioners illegal.
In the notice filed at the High Court on Wednesday, Minister Yussuf Haji through lawyer Kibe Mungai said Justice Mumbi Ngugi 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 provision of the new Constitution that have been suspended,” Mungai said on Thursday.
In her ruling on June 29, Justice Ngugi declared the President had erred in the appointment of the commissioners as he had overlooked a number of Articles in the Constitution.
“The President did not have the legal authority to make such appointments and his decision was against the spirit of the Constitution and the National Accord and Reconciliation Act, which called for consultation and gender balance,” Justice Mumbi ruled.
The judge also nullified the appointment on the strengths that the President went against the spirit of the National Accord and Reconciliation Act.
“The Act requires him to consult Prime Minister Raila Odinga whenever appointments to senior government offices are made,” she said.
But in the intent to appeal, Mungai says the judge had ignored Section 23 and 24 of the Constitution and as such has technically paralysed the capacity of the President to discharge his functions.
Interestingly, the Chief Government Legal Advisor had agreed with the judge in that the appointments violated the Constitution, the National Accord and Reconciliation Act.
Deputy Solicitor General Muthoni Kimani wrote to the Minister advising against lodging an appeal.
The appointment was challenged in court by civil society activists Patrick Njuguna, Charles Omanga and the Centre for Rights Education and Awareness (CREAW) filed the petition.
According to the Minister the judge misunderstood the concept of restructuring the Provincial Administration by ruling that the law should be amended before restructuring.
The Minister argues that the restructuring is not a new concept since the Provincial Administration was already in existence.