President Kibaki breached the Constitution and the National Accord in the appointment of the 47 County Commissioners.

High Court judge Mumbi Ngugi said the appointment of the commissioners was null and void as the Head of State had contravened several sections of the Constitution in his purported appointment of the officers.

“The President is under obligation to steer the country in observing the Constitution. He therefore did not have powers to appoint the County Commissioners as he had purported to do,” she said in her ruling.

The judge said the Constitution clearly stipulates that no one gender should be allowed to hold over two thirds of any given Government appointments but the President failed to observe the provision.

Ngugi said during the submissions by the lawyers, it was disclosed that there were 26 women District Commissioners serving in the country, but the President had failed to pick at least 16 to meet the two third threshold.

She said the State counsel representing the Government had failed to give reasons or defend the move by the President to appoint more than 72 per cent from one gender.

Acted in haste
The judge added that the Government had acted in haste to fill the vacancies without following the laid down procedure of public participation and competitiveness.

The judge observed that the legislature should have created the offices of the County Commissioners first before the appointments were conducted and added that there was a rush to fill positions that never existed.

“The positions were not advertised and public participation was not exercised. For the past two decades, Kenyans have been fighting for a reformed society and that is what culminated in the new Constitution and it should be upheld,” added Ngugi.

She explained that the country has a new Constitution and it was necessary for the leaders to change the way things were being done in the previous constitutional order.

Invoking the National Accord, the judge explained that the President failure to consult the Prime Minister in the appointment was in contravention of section 29 of the Accord.

Ngugi said the President should have consulted the PM as the Accord clearly stipulates The judge rejected submissions by the Government counsel that the second advertisement in the Kenyan Gazette had discharged the first advert, which had appointed the commissioners.

Centre for Rights Education and Awareness had moved to court seeking the nullification of the appointments for failing to meet the two-thirds threshold.

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