Mixed reaction over President Uhuru Kenyatta’s decision

President Uhuru Kenyatta signs Business Bills at State House, Nairobi

President Uhuru Kenyatta surprised Makueni County residents when he rejected Mohamed Nyaoga-led Commission of Inquiry into Makueni’s proposal to suspend the county.

The President’s decision also appeared to contradict a legal opinion delivered by Attorney General Githu Muigai whose threshold of suspension appears to have been met by the commission. Statistics tabled by the commission shows that 83 per cent of those who attended the commission hearings wanted the county suspended. Only 17 per cent wanted the county government to remain.

Those who wanted the county suspended cited, among other things, lack of development projects, poor service delivery, rampant corruption, wastage of public funds in irrelevant local and foreign trips, irreconcilable differences between the executive and assembly and delayed budgets.

The 17 per cent who wanted the county government retained cited little time left before the next General Election and suggested more reconciliation efforts. They also feared the same people may be re-elected and that election would be a costly affair for the taxpayer.

They also said the County Government appeared to have started working, citing the passage of 2015/16 budget. In the final decision announced by State House Spokesman Manoah Esipisu, President agreed with the 17 per cent who wanted the county retained.

He said the litany of failures listed by the report did not meet the high bar set for suspension. He also said he believed that “constitutional, legal and political architecture” currently available provides sufficient alternative to deal with the issues raised.

“The petitioners are obviously not a happy lot... They are utterly disappointed. Having said that, the petitioners respect the decision of the President and appreciate he has those powers...,” petitioners lawyer Kyalo Mbobu told The Standard on Sunday. Mbobu said the people of Makueni had been thrown back to the same institutions of governance which had failed them in the first place.

“It’s more of political expediency, if you ask me, more than any other consideration,” Mbobu added.

County Senator Mutula Kilonzo Jnr says his people had hoped that the panacea for lack of development would be suspension of the county.

“While I agree in principle that dissolving a county is drastic and should be used as a tool of last resort, the entire process has left Makueni hanging after a year of turbulence. I have requested the Governor, Speaker, Majority and Minority leaders to convene an urgent meeting to chart a clear path on our development agenda,” Junior said.

President’s advisor on constitutional and legal affairs Mohamed Abdikadir, however, says the President acted in the best interest of the county. He said the history behind the drafting of the petition process supported the President’s decision.

He said the process was made “difficult” to prevent an overbearing central government from seizing on opportunities as Makueni to sweep over county governments.

“Counties governments are elected governments. It’s important that exceptional circumstances obtain for any decision suspending counties. We do not have guarantees suspension and ultimately elections would solve the problem. If anything, guarantees are there to show that the governance issues raised continue and will continue to obtain. Criminal cases which are pending will not be solved by suspension,” he said.

According to Abdikadir, all the issues raised in the report can be addressed through existing structures. He said the 83 per cent popularity of the suspension option is clear enough an indicator that the problem can be solved through dominant political processes.

“More important to the presidency is the fact that the commission made a host of recommendations away from the suspension matter. Those issues touching in array of actors and institutions are receiving serious attention from our side. The petition was not in vain,” he added.

Mbobu agrees with Abdikadir that the process was not in vain. He says the process sent out a “strong message” to all counties that the people are prepared to fight for their rights. The question of whether the President should have let the report find its way to the Senate has also come out in public discourse. The President used a discretion implied in Article 192(1) (b) of the Constitution to settle the matter from his end. The article says suspension of county shall happen once the President is satisfied that a justification exists and Senate approves the same. In Makueni’s case, the President was satisfied the justification does not exist.

“Nothing stops the Senate from picking the document and considering it within the meaning of its county oversight role. It’s a public document. In terms of the legal process however, the official hand-over is predicated on President’s satisfaction,” Abdikadir explained.

However, Mutula Jr believes the President should have let the Senate and his side of the Jubilee coalition thrash out the matter since he approved the process himself in the first place.