President Kibaki lost final bid to have strong arm of central government in running of counties after his Chief Legal Advisor refused to play along.

The Government received the kick in the teeth after Attorney General Githu Muigai, declined to appeal against a High Court decision to revoke Kibaki’s appointment of 47 county commissioners.

In so doing the AG appeared to side with the High Court on the ruling that the appointments violated the Constitution, the National Accord and Reconciliation Act 2008, and breached the one-third-gender rule.

Curiously, the AG’s letter declaring he would not appeal was sent to acting Permanent Secretary for Internal Security and Provincial Administration. Instead of recalling the affected commissioners, the PS asked them to remain at their stations in spite of the court order.

The setback to the President’s wish to stamp Executive authority in the devolved units came a day after Prime Minister Raila Odinga cautioned senior civil servants against ignoring the court order and other constitutional requirements.

“It is not a question of whether one is unhappy and is going to appeal or not. The truth of the matter is that a court ruling must be respected. That is why I am deeply concerned with the directive by the PS (Iringo),” said Raila.

A letter signed by Senior Deputy Solicitor General Muthoni Kimani, who repots to Muigai, and dated Tuesday, July 4, advises the President’s office against appealing.

Still defiant
“The Attorney General advises against appealing the High Court decision in the county commissioners’ case,” said Kimani.

The three-paragraph letter kills any hope the Government had in retaining the recently appointed commissioners, largely because if there were to be any appeal, it would be the AG to lodge it.

In her ruling, High Court Judge Mumbi Ngugi declared the President had erred in the appointment of the commissioners as he had overlooked a number of Articles in the Constitution. Justice Ngugi said, “The President did not have the legal authority to make such appointments and his decision was against the spirit of the Constitution and the National Accord and Reconciliation Act, which called for consultation and gender balance.”

The list of appointed commissioners had 10 women and 37 men, while the Constitution specifies that no one gender should occupy more than two-thirds in any public appointments.

That notwithstanding, an inquiry by The Standard, showed the commissioners continued working in disregard of the court order. Civil society groups on Tuesday called for the suspension of Iringo for ignoring the court order.  This appears to be what prompted the AG’s office to avoid the controversy.
Iringo had earlier asked the commissioners to stay in office with an assurance the AG would overturn the decision through an appeal.

The decision to hire the 47 county commissioners was first mooted by Iringo’s predecessor Francis Kimemia, now the acting Head of Civil Service.  He is now Iringo’s boss and the chief implementer of the President’s and Cabinet decisions.

Kimemia earlier made a futile attempt to appoint county commissioners, but the Prime Minister, the Constitution Implementation Commission, and the civil society rejected the list.

It was argued at the time the appointments disregarded the tenets of devolution as enshrined in the Constitution. Though the initial list was withdrawn, the second came from Kimemia’s office and still bore the footprints of the rescinded breakdown. 

Former Internal Security Minister George Saitoti defended the appointment of the commissioners when Kibaki picked them on May 11.

He told a charged Parliament that the President took the action in his administrative capacity because the appointments did not require him to consult the PM or the Implementation Commission.

“They will not interfere in any way with the authority of county governments,” the late Saitoti said.

Remain vigilant
He said the President acted under the advice of the Attorney General, who had given his opinion that the Executive had the powers to transfer officers. But Thursday, it was the same AG who pulled away from the contentious list.

But ODM MPs led by Joint Government Whip Jakoyo Midiwo, and three ODM MPs – John Mbadi Rachael Shebesh and Millie Odhiambo – argued that the appointments lacked merit, transparency, and public participation. 

On Wednesday, Raila cautioned there was a plot by some Government officers opposed to the Constitution to sabotage implementation. He said Iringo order asking county commissioners to disobey the court was part of the plot.

“The county commissioners’ debate is a start of what Kenyans should expect because other decisions will come where the Constitution will not be obeyed. But Kenyans must remain vigilant and jealously guard the Constitution,” advised Raila.

Last weekend, Iringo told commissioners at their induction course at the Kenya Institution of Administration they should return to their workstations pending Government appeal against the ruling.

Iringo said: “From here, you are required to go back to your work stations and continue with your work.”
In Coast, Kwale County Commissioner, Evans Achoki, Thursday said he was waiting for a letter to ask him to leave the office before packing.

“I was appointed and given a letter posting me to Kwale. Now, I’m waiting for the same office to send me another letter terminating my services,” he said.

In Lamu, County Commissioner, Stephen Ikua, remained in office, while in Mombasa, the new appointee Nelson Marwa was also in office, but refused to comment on the court ruling. In Kilifi, Mohamed Maalim failed to preside over the handing over of 46 motorbikes bought by Bahari Constituency Development Fund for chiefs.

Tana River County Commissioner, Joseph Rotich, was on official duty in Nairobi, but confirmed he was in office. His Taita-Taveta counterpart Harun Khator said he was attending a workshop in Nairobi.

County commissioners in the North Rift were also at their duty stations. Some told The Standard they were directed to continue working until further communication.

Uasin Gishu County Commissioner Abdi Hassan said he was discharging his duties since he took over from the former regional commissioner.
“I am here to serve the people as I was directed by immediate bosses. I cannot comment on anything touching on what my seniors have said,” said Hassan.

Other commissioners still in office in the region were Mahamed Birik (Elgeyo/Marakwet) and Matilda Sakwa of Nandi County.

Mr Birik said he would continue working until he gets further direction. Baringo County Commissioner Benard Leparmarai said he was still in office following instructions they continue serving despite court ruling that revoked the appointments.

In Pokot County, Commissioner Peter Okwanyo, was also been in his office discharging Government business, The Standard found out.

A check in Kericho and Nakuru counties showed the new commissioners were in office despite the court order. But in Bomet and Narok counties, commissioners stayed away, waiting further Government direction.

Very unhappy
In Kericho, Commissioner Mohammed Rashid spent the better part of Wednesday on a familiarisation tour of Kericho West District where he met heads of departments at Sosiot town. In Nakuru County Rift Valley PC Osman Warfa announced County commissioner Amos Gatecha would be occupying the Nakuru DC’s offices. 

“The county commissioner has now moved to the district headquarters where he will be co-ordinating county affairs,” Warfa said.

Operations at Bomet County offices remained slow, as Commissioner Pauline Dola has been absent since the court ruling.

In Nyanza, Kisii County Commissioner Lydia Muriuki was away in Nairobi to pick supplies for the county office, but said she was on duty.

Her Nyamira counterpart Wilson Wanyanga was in his office, wondering why they were the targets, yet other ministries had made similar deployments.
“I am a civil servant just like others who have been deployed as county directors or commissioners,” said Wanyanga.

In Western, a check established that all the four county commissioners had not vacated their offices.

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County Commissioners General Githu Muigai