Is Kibaki blundering yet again?

Mwai Kibaki is at the centre of another controversy. It concerns his habitual unilateral appointments of officials to public offices. Last time he did so he had to eat a humble pie and withdraw his appointments of the Chief Justice, Attorney General and Director of Public Prosecutions. This time he has appointed 47 County Commissioners without consulting the Prime Minister and totally ignoring Parliament’s approval.

As was to be expected the new appointments have been challenged by both Prime Minister Raila Odinga and the Constitution Implementation Commission Chairman Charles Nyachae. The matter seems to be heading for the courts where the correct interpretation of the Constitution will be made.

But before that happens it is fair to examine what both the supreme law says and also what the County Government Bill, which is waiting for the Presidential assent, says about the importance of devolution. Section 17 of the Sixth Schedule of the Constitution says: “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.”

Whereas this is the part of the Constitution quoted by the statement from State House justifying the President’s unilateral action , it is also, paradoxically, the same part of the Constitution quoted by Nyachae claiming the President used powers he did not constitutionally possess. Nyachae argues that the part that emphasizes the respect for the system of devolved Government wasn’t quite observed by the President. 

Nyachae’s concern was that Kibaki totally ignored the provisions of the County Governments Bill 2012, which is still waiting for his assent. The Bill says in Section Six on Powers of county Governments that each one of them will be an entity exercising constitutional authority. It says each county government shall have all the powers necessary for the discharge of its functions. So far Kibaki has not approved this Bill and it is still not very clear whether he is unhappy with county Governments getting too much powers.

Whatever Kibaki decides the Constitution is very clear about the divisions of responsibilities between county and central governments. Chapter 11 which is on the Objects and Principles of Devolved Government says in Article 174 that the objects of the devolution of government are to promote democratic and accountable exercise of power. The other important object of the devolved Government is to foster national unity by recognising diversity and give powers of self-governance to the people and also enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them.

By unilaterally appointing County Commissioners, Kibaki has violated the Constitution for not promoting democratic and accountable exercise of power. One of the main objectives of establishing County Governments is, according to the Constitution, to recognise the right of communities to manage their own affairs and to further their development as well as to protect and promote the interests and rights of minorities and marginalised communities.

May be the best way of making sure communities managed their own affairs as far as the appointment of County Commissioners is concerned would have been for Kibaki to consult with the Prime Minister first and whatever list the two agreed on to be placed before Parliament for the Legislature’s approval. That way the people’s representatives in Parliament would have made their contribution on the issue. As things stand now someone is using, or to be more specific, is misusing the President to create jobs for his or her own cronies. With the promulgation of the new Constitution Kenya has passed that stage; but someone is very eagerly planning to take the country back to the dark days of nepotism.

As a matter of fact Prof. George Saitoti told Parliament the President used powers given to him by the old Constitution to make his appointments. He simply called the new administrative engagements “redeployment”, yet the country has never had positions of County Commissioners in the civil service before. The Court is likely to consider Kibaki’s appointments unconstitutional and nullify them and if it doesn’t the new appointees are likely to face a considerable amount of hostility from local politicians who will see them as anti-devolution agents.

While announcing Kibaki’s appointments of the County Commissioners State House said it was doing so in accordance with the Fourth Schedule of the Constitution which clearly outlines the distinct functions of the National Government and those of the county governments. State House therefore announced that in this regard, President Mwai Kibaki had appointed County Commissioners to undertake coordination of National Government functions in the 47 counties.

Other functions of the appointed County Commissioners, as they were listed  by State House, include mobilizing  National Government agencies for national events, and programmes; collaborating  with the Kenya Citizens and Foreign Nationals Management Service in the identification of persons for registration; promoting  and enhancing  national cohesion and integration to foster unity of the nation; and to coordinate the dissemination and implementation of National Government policies and programmes.

Despite the controversy surrounding Kibaki’s appointments, it is very important that the politicians who will be controlling counties are not given the responsibility to determine who is and who is not a Kenyan. Some counties will be neighbouring countries with people who are always making every attempt to be accepted as Kenyans. The counties that will be bordering Somalia, for example, should not be given the responsibility of registering aliens or determining who Kenyan nationals are. A lot of politicians from those counties believe the border between Kenya and Somalia should not exist and when they control the said counties they are simply likely to allow all Somalis to come into Kenya unhindered.

Kibaki’s appointees would also manage and maintain administrative boundaries, security roads and airstrips; provide liaison, collaboration and partnership between the National Government and the County Government; coordinate disaster management and emergency response; facilitate participation of the people in National Government policy formulation and articulation; facilitate alternative dispute resolution initiatives; and perform any other lawful function assigned by the National Government and any other legislation.

The Commissioners will also be expected to register assets to be under the County Governments and to be handed over to the Governors soon after the General Elections.  The Commissioners, according to State House, will facilitate the Transitional Authority in the identification, location and differentiation of the offices of the County Government and offices of the Central Government from the existing portfolio, without prejudice.

Kibaki’s intentions for making the nominations may be good for the Fourth Schedule of the Constitution lists no less than 35 very important responsibilities which will continue to be done by the national government. These include foreign affairs, foreign policy and international trade; the use of international waters and water resources; immigration and citizenship as well as the relationship between religion and state.

Whether one agree with Kibaki or not the reasons he has given for appointing County Commissioners are legitimate. What can be contested is whether he followed the Constitution in making those appointments. On the issue of consultation and affecting gender balance as is required by the Constitution the President seem to have learnt no lesson from past experiences. His appointments must therefore be revised by following the law.