Kibaki’s appointments ill-timed and suspect
THE darkest hour of the night is just before dawn. Could the prevailing political circumstances be the darkest hour just before Kenya gets to a new dawn? Politicians and technocrats are busy crafting and testing new political alliances with the aim of getting the best winning formula ahead of the polls—but in doing so, many are flouting the very laws that have been enacted in order to operationalize the new constitution.
Some public appointments have not inspired public confidence because they fly in the face of the equity, fairness and regional balance which Kenyans voted for when they gave themselves a new constitution.
Kenyans are asking themselves whether the political elite will respect and implement the new constitution. And this concern brings us to the latest appointments made President Mwai Kibaki when he released names of 47 administrators he says will assume the positions of County Commissioners to represent the central government when the system of devolved governments takes effect.
Politicians, civil society leaders and lawyers have questioned the President’s move to appoint county commissioners, terming it rushed, suspect and intended to undermine or kill the principle of devolution even before it is born. Others have already read mischief in the appointments, saying they fly in the face of the constitutional provision that demands regional and gender balance in all public appointments.
But those who support the president say the appointments are consistent with the transitional clause in the constitution, that demands that the Provincial Administration be restructured to fit into the devolved system of government. However, when carefully analysed, the devolved system of government will be the loser if Kibaki’s appointments are allowed to prevail.
First and foremost, the President has jumped the gun by appointing county commissioners even before the county governments are in place, yet the law says that it is the provincial administration that should be restructured to fit into the devolved governments.
How will the provincial administration fit into an entity that has not yet been established? How does the president know that the county commissioners he has appointed will fit into the yet to be established county governments?
If the President and his handlers were honest enough, they should have allowed the county governments to be established first, then proceed to restructure the provincial administration to fit into the devolved system. But because the President ignored this procedure, there are legitimate claims that his appointments are suspect. The spirit and letter of the devolved system of government will be the big loser if President Kibaki’s appointments are left to stand.
Suspicions over the appointments are compounded by the fact that this very President rejected to sign into law a bill approved by parliament that specified how the provincial administration would relate with the county governments. The President argued that its provisions flouted constitutional provisions by illegally allocating county governments functions that belong to central government. The President referred the bill back to parliament accompanied with some amendment notes.
Even if the President’s move to appoint county commissioners is within the law pertaining to the separation of powers between the central government and county governments, is that an excuse to flout another law? Certainly not! The 47 positions of county commissioners are public jobs and can only be filled through a competitive process in order to find office bearers who comply with provisions of both Article 10 and Chapter Six of the constitution.
How did the President decide on his own that the 47 people he appointed meet the requirements? Where was the gender and regional balance? Did he give every qualified Kenyan a chance to apply?
The contempt that has greeted President Kibaki’s appointments is justified. The appointments have demonstrated that people who do not want reforms are slowly gaining ground and that the new constitution could be crippled.
Anti-reformists intend to cripple the new constitution by watering down the functions of the county governments. They seek to ensure that power and resources are kept with the central government which they control. The Minister of Finance is still stone-walling over bringing to parliament crucial public finance management bills to empower county governments financially.
Article 202 of the constitution, which deals with equitable sharing of national revenue, provides that revenue raised nationally shall be shared equitably among the national and county governments; and that county governments may be given additional allocations from the national government’s share of the revenue, either conditionally or unconditionally.
The importance of equitable sharing of national resources between national government and county governments is captured under Article 203 (d) which includes the need to ensure that county governments are able to perform the functions allocated to them.
The danger is that the political elite want to retain power at the centre and will try to starve county governments of the financial resources and autonomy needed to execute their mandate effectively.
The appointment of 47 county commissioners gives the central government a head-start to use existing structures of the provincial administration to entrench itself in the county governments.
The President should revoke his appointment of county commissioners and constitute them — if they are even necessary— only when the county governments are up and running.
The writer is the CEO of the Kenya Muslim Youth Alliance the Deputy Secretary General of the Supreme Council of Kenya Muslims (SUPKEM).