Ruling on county commissioners puts Attorney General Githu Muigai on the spot

By Dann Mwangi

NAIROBI, KENYA: Exactly two weeks after High Court Judge Mumbi Ngugi nullified the appointment of county commissioners by former President Kibaki, last year, I wrote an opinion commentary in this paper castigating her decision.

Under the banner, “Judicial reform must entail reforms in Legal Reasoning”, I averred that the appointments were both constitutional and legal and since in my opinion she had misdirected herself, I insisted the need for both legal and scholarly challenge of her decision.

I wrote that the ruling was wrong in holding that executive authority under Sections 23 and 24 of the former Constitution, which President Kibaki relied upon to appoint the commissioners were not saved by the Transitional Provisions as captured under the Sixth Schedule.

 At the time, there was sharp division in the Grand Coalition Government with the PNU wing in full support of the appointments but the ODM wing led by former Prime Minister, Raila Odinga in strong resistance against the appointments.

Intense debate

The debate about the role, legality and constitutionality of the office of the county commissioner did not end there.

Before the Court of Appeal overturned the High Court ruling that nullified the appointment of these commissioners on Friday last week, there has been an intense public debate and sometimes wrangles in the counties as to whether the county commissioners are powerful than the governors or vice versa.

There has been strong opposition by some governors who say county commissioners have no role to play under the county governments despite the fact that they have been performing the constitutional duties of the national government at the county level.

Clear division of roles

With the Court of Appeal putting this matter to rest, it is now official that county commissioners are here to stay, not unless the Supreme Court overturns its decision or Parliament amends the National Government Coordination Act which provides existence of that office and stipulates its role.

With this in mind, there is need for governors to embrace county commissioners and work together for the greater good of the public at the counties levels. Governors must not see the county commissioners as enemies of devolution or their competitors as the roles of governors and county commissioners are distinct.

Under Part One of the Fourth Schedule of the Constitution, there are distinct functions of national government and since these functions are not discharged at the central location of national government only, Nairobi County, the county commissioners will perform and coordinate these roles on behalf of national government at the counties. Further, the governors, who head county governments at the counties will discharge the functions of county governments as per Part Two of the Fourth Schedule of the Constitution.

With this division of functions for both national and county government by the Constitution, there ought not to be power wrangles or friction between governors and county commissioners.

In addition, Sections 5, 6, 16 and 17 of the National Government Coordination Act expressly states that the Act does not limit the constitutional and legal powers of the President or Governor, but only ensures reasonable access of national government services to all parts of the country.

Creating scapegoats

However, where any wrangles arise between governors and county commissioners, this Act, under Section 19 gives them the platform to have a mediation team to resolve any dispute.

Therefore, there is no need for governors to be afraid of county commissioners as this fear has metamorphosed to the extent that governors who appear challenged in governing their counties are using county commissioners as scapegoats for their personal failure and mediocrity.

Nonetheless, the analysis of the Court of Appeal ruling cannot end without an observation of how our Attorney General, Githu Muigai, is offering poor legal advice to the government if not misleading the government.

Appearing before the 10th Parliament Committee on Justice and Legal Affairs, the AG vigorously defended the appointment of county commissioners but hardly did a week end before he started opposing the appointments. He is in public record having stated how unconstitutional and illegal the appointments were.

In fact, he was against the move to appeal the High Court decision by an enjoined party to the suit, the Ministry of Internal Security and Provincial Administration. The State Law Office was equally against the appointment of a private legal practitioner, Kibe Mungai, to appeal on behalf of the ministry, despite stating in public that he would not appeal.

This ruling in favour of the appointment of the county commissioners is now an egg on the AG’s face and casts aspersion on the quality of legal advice he offers the government.

Above all, it vindicates the former President, Kibaki and Mutea Iringo, the nominee for the post of Principal Secretary, Ministry of National Interior and Government Coordination who were accused of ignoring the constitution and the law.