Handle County Chiefs Appointment Carefully
When President Mwai Kibaki announced— through Kenya Gazette notices of 11th and 23rd May— that he had appointed 47 administrators to the newly created positions of County Commissioners, he obviously did not anticipate that his actions would kick off a massive legal and political storm. But that is precisely what has happened. The hullaballoo that has followed these appointments threatens to derail critical arms of Government from pursuant of other pressing national issues as everyone plays blame game.
However, judging from the flurry of events surrounding the issue of County Commissioners, it is apparent that something may have gone wrong right from the beginning. Let us retrace the path leading to where we are today with the issue of County Commissioners. On 11th May, President Kibaki announces in a Kenya Gazette notice No 6604 that:
“Pursuant to Section 17 of the Sixth Schedule to the Constitution of Kenya, I, Mwai Kibaki, President of Kenya appoint these persons to be County Commissioners… The County Commissioners shall undertake the co-ordination of National Government functions in the 47 Counties”
Six days later, a group of civil society actors were in court challenging the legality of the President’s actions in regard to the appointment of County Commissioners. Apparently alarmed, on 23rd May President Kibaki issued a fresh Kenya Gazette Notice revoking the previous notice. In the new Kenya Gazette notice, the “Appointment” of County Commissioners was replaced with “Deployment” of County Commissioners.
So in the new Kenya Gazette Notice the President said:
“Pursuant to Section 3(2) of the Sixth Schedule of the Constitution of Kenya and Sections 23 and 24 of the former Constitution, I, Mwai Kibaki, President of the Republic of Kenya assign officers whose names appear…to be County Commissioners. The County Commissioners shall co-ordinate the execution of setting up of the County Governments in particular facilitate the transitional authority in execution of its mandate”
What is apparent here is that after the first Gazette Notice was challenged, the President realised that he may have made a procedural mistake and moved swiftly to redress the same via the second Gazette Notice.
However, this did not stop those who were seeking to have the process completely reversed. Indeed the civil society group that went to court ultimately got a High Court ruling declaring the appointments or deployment as the case might be “illegal”. True, the issue of gender parity as envisaged in the new Constitution appears not to have been adequately redressed by the President even after the second Gazette Notice of 23rd May.
The new Constitution variously states that in the interest of gender balance, “no more than two-thirds members” of a body shall be from the same gender. Of the 47 County Commissioners, 37 were men and only 10 were women. In compliance with the requirements of the new Constitution, the least number from any gender should have been at least 15.
Whereas many other arguments advanced to block the appointment or deployment of County Commissioners do not hold much water, the gender balance is indeed the Achilles heel. If the President had rectified this in his second Gazette Notice, he would have had an opportunity to remove a significant amount of wind from the sails of his detractors.
There is no doubt that as we transit to County Governments in less than a year, appointment or redeployment administrators to co-ordinate the transition is a matter of critical urgency. Transiting to an untested political system without putting in place proper administrative mechanisms will be tantamount to jumping out of a plane without a parachute.
That is the kind of a dangerous situation the country shall find itself in, if the shenanigans surrounding deployment of County Commissioners are not brought to an end sooner than later. The Attorney General Prof. Githu Muigai and Minister for Justice and Constitutional Affairs Eugene Wamalwa have taken the position that the Government should not appeal the ruling by High Court Judge Justice Mumbi Ngugi.
The Office of the President as well as the Ministry of Provincial Administration and Internal Security hold a different view. On the other hand, politicians have taken positions on the issue based on whether or not they feel the deployment of County Commissioners serve or do not serve their (politicians’) political interests.
Clearly there is a dangerous impasse here. With so many divergent positions, this has become a hot-potato political problem, which requires careful handling and through political means. The President’s intentions in appointing or deploying the County Commissioners appear—for all intents and purposes—to have been noble and based on critical needs of the country.
But this nobility has, unfortunately, been taken off course in the subsequent hullaballoo. A good idea stands on the verge of being discarded at the altar of political expediencies, grandstanding and vested interests. These are vices, not the virtues we fought to get under the new Constitution.