The Supreme Court has put the last nail on the coffin of law creating the county development board, handing governors a major win in their supremacy battles with senators.
The court on Wednesday ruled that any subordination of governors to senators in the execution of county functions is illegal.
The court made the ruling in a petition challenging the nullification of the County Governments (Amendment) Act , 2014.
The law that was passed by the senators wanted the establishment of a county development board to be chaired by the senators in every county. The governor would be the vice chairman. Other members included all MPs elected in that particular county including the woman representative. County commissioners were also to be members.
County assembly speaker, majority and minority leaders were also to be members of the board whose main objective was to provide a forum for consultation on county development matters.
Governors and activists challenged the law, saying it was unconstitutional. Both the High Court and the Court of Appeal agreed with the petitioners and declared the amendment unconstitutional for the reason that the composition and mandate of the board upset the framework of devolution and separation of powers as created by the Constitution.
The aggrieved lawmakers then moved to the Supreme Court where judges of the apex bench were to determine the constitutional validity of the amendment.
"The amendment in purporting to impose on the governor a principal, fails to meet the test of cooperation, coordination and consultation. It fails to respect the functional and institutional integrity of the county government and its constitutional status as stipulated in Article 189," the Supreme Court ruled.
The bench was presided over by Chief Justice Martha Koome and included justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and William Ouko.
The amendment to the law came at a time of frosty relationship between governors and senators, coming hot on the heels of the impeachment of Embu Governor Martin Wambora.
County chiefs said there was malice in the drafting of the law. Wambora was later reinstated by the High Court. He is now serving his second term and is the current chairman of the Council of Governors.
“There is nothing personal between senators, governors, MPs or even MCAs and the debate has been blown out of proportion,” then Senate Speaker Ekwe Ethuro said in 2014.
Governors would here none of it.
They said the law was inconsistent with the Constitution that made governors the county chief executives with absolute powers.
The lawmakers insisted the amendment did not violate any provisions of the Constitution nor altered the structure of devolution, saying it only created a forum for consultation.
High Court judges Isaac Lenaola (now Supreme Court judge), Mumbi Ngugi (now Court of Appeal Judge) and George Odunga declared the amendment unconstitutional in a judgment delivered on July 10, 2015.
They said the composition and mandate of the board upset the structure of devolution and separation of powers.
The Senate and the National Assembly and some lawmakers then moved to the Court of Appeal, saying the High Court bench had failed to specify the particular Articles that the amendment contravened.
They said the judges relied on ubiquitous, broad and fluid grounds to declare the amendment invalid.
But the appellate judges dismissed those claims and upheld the decision of the High Court. The appellants on Wednesday suffered a similar fate at the Supreme Court.
"In enacting the County Government (Amendment) Act, the Legislature did not meet the constitutional test of validity," the Supreme Court judges ruled.
