|County Commissioners at a past function[Photo:File/Standard]|
By Standard Team
The State continues to defy a High Court ruling that declared the recent appointments of county commissioners “null and void” because they were unconstitutional.
The commissioners were still in their new offices on Tuesday allegedly discharging their duties even after the High Court revoked their appointments.
This has set the stage for a major clash of wills between President Kibaki and the Judiciary, as the commissioners operate in the Ministry of State for Internal Security that is under his office.
The High Court ruling was on petition 208 challenging the constitutionality of the appointments or deployments by the President of 47 county commissioners by way of Gazette Notices issued on May 11 and 23.
“The ‘appointments’ or ‘deployments,’ whatever term is used, assuming that the President had power to make them, fail the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution,” said Justice Mumbi Ngugi.
She noted, “The President is under obligation to ensure that he, too, helps to move the country forward and to respect the values and principles of the Constitution. He did not do this in the present case.”
She added: “If a position does not exist, it is clearly not possible to ‘deploy’ officers to or from such non-existent position. The office would have to be created first, then appointments made, before ‘deployment’ or ‘re-deployment‘ to that position can take place. Clearly, Gazette Notice No.6937 of May 23 was an attempt to cure what was not curable.”
Stressing on the need to operate within the Constitution, Justice Ngugi said Kibaki should have consulted Prime Minister Raila Odinga and sought the approval of Parliament on the matter.
She concluded that Kibaki had no power to appoint or deploy the commissioners and that he violated Article 10 and 27 of the Constitution.
“The purported deployment of County Commissioners by Gazette Notice No. 6937 of May 23, 2012, was therefore unconstitutional, null and void,” she concluded.
Some of the commissioners, when contacted by The Standard, opted not to respond to our queries saying they were not allowed to comment on the matter.