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.
