Forty governors are on the spot for flouting constitutional requirements in their choice of new cabinet members.
A number of legal experts are warning that the affected county cabinets should be reconstituted and all the appointees vetted by the Ethics and Anti-Corruption Commission (EACC).
According to EACC, only the governors of Garissa, Mandera, Marsabit, Kiambu, Vihiga, Kericho, and Nairobi have complied with legal requirements in appointing their cabinets.
The other 40 counties appointed the ministers, officially known as county executive committee members (CECM), without ensuring they had clearance on financial probity, corruption, criminal conduct, and tax compliance.
The EACC director of legal services, David Too, in a memo to the counties on January 12 says the counties disregarded Section 12A of the Leadership and Integrity Act, 2012 which requires that all persons seeking public office uphold high standards of integrity and ethical conduct while discharging public duty.
“The commission notes with great concern that the nomination and appointment of CECMs in 40 county governments did not comply and therefore fall short of the requirements of Chapter Six of the Constitution,” said the letter.
Mr Too wrote to the 40 counties that had not complied with the integrity requirement through the chief executive of the Council of Governors, Jackline Mogeni.
Lawyer Mugambi Imanyara said the Constitution, the Leadership and Integrity Act, and the County Government Act required a candidate to the county cabinet to meet the legal requirements on the educational, moral, and ethical standards set out in the law.
"It is incumbent upon the county assemblies to demand an integrity report from EACC on all candidates for such positions for purposes of vetting. If that wasn't done, those candidates didn't meet the threshold for appointment. They must be removed from office and vetted afresh," said Imanyara.
Another lawyer, Charles Benedict Mwongela, lauded the EACC for raising the alarm, saying it had a constitutional duty to enforce ethical and moral standards in the country.
"If indeed those appointments have been carried out in outright disregard of the various laws, then they are unconstitutional," said Mwongela. "Even an independent citizen can move to the High Court to have them quashed them on those grounds."
But George Kithi, also a lawyer, said there was no legal requirement that a person must be cleared by EACC for him to be employed in the national or county cabinet.
"The CECMs, therefore, cannot be said to have been illegally recruited. Besides, a person will only be guilty if pronounced as such by a court of law. There is the sticky issue of presumption of innocence," added Kithi.
Some of the affected governors who were unhappy with the EACC's action, have dismissed the letter, arguing that the names of the proposed nominees were sent to the body before they were appointed.
“That is misleading. EACC clearance was part of the basic requirements before our CECMs were shortlisted for interviews,” said Laikipia Governor Ndiritu Muriithi,
Meru Governor Kiraitu Murungi also defended his administration, saying the EACC should check their systems again because his nominee list was sent to them even before the appointments were announced.
“We sent the names and never got a response, so the assumption was that EACC had no issues with our nominees,” said Kiraitu.
He added that there was no requirement that EACC must approve the nominees first and, therefore, those the county assembly interviewing panels had no issue with were presumed to be qualified for appointment.
“We cannot presume somebody is guilty or unqualified unless we have facts and the EACC cannot abrogate the executive power to appoint that is vested in governors,” added Kiraitu.
Kakamega Governor Wycliffe Oparanya said county bosses did not need clearance from EACC.
"The Counties Act stipulates that we advertise positions, the applicants are interviewed by a professional body, and the county assemblies vet them. What else do we need?" Oparanya asked.
He said he would follow the same procedure he followed when he appointed CECs in 2013.
Kisii Governor James Ongwae said he had complied with EACC requirements and submitted the report to the agency.
Nyandarua Governor Francis Kimemia said his county executive committee members had all filled the necessary EACC forms.
"All the CECs are ready for advanced vetting,” said Kimemia.
Machakos Governor Alfred Mutua said he had heeded an advisory from Attorney General Githu Muigai on the nominations.