Ruling on commissioners vindicates Kibaki, Iringo

By KIRATU KAMUNYA

Without a shadow of doubt, a lot of ink has been expended on the legality or otherwise of the new county commissioners. As I have argued on numerous occasions in related articles, the former president was simply exercising his constitutional mandate in the restructuring and reorganisation of the Provincial Administration.

But given the delicate nature of the previous coalition regime, political undercurrents and not informed legal debate dominated the views about the legality of the appointments. To this date, several persons especially those who previously belonged to the ODM coalition view the county commissioners with disdain.

They have time and again cited their appointment to further the false theory that the Office of the President has been using them to undermine devolution.

This is in spite of clear constitutional provisions on the demarcation of powers between the National and the County governments and the requirement for interdependency between the two authorities.

The ruling by the Court of Appeal approving the county commissioners is therefore timely and refreshing. The findings by justices Martha Kome, Milton Makhandia and Kairu Gatembu carry with them several implications.

To begin with, the judges have asserted clearly that the point of reference in guiding the appointment of county commissioners going forward will have to be The National Government Co-ordination Act.

They as a result observed that the former president’s move to appoint the commissioners was aimed at fulfilling his constitutional obligations under Article 6 to ensure that the services offered by the Provincial Administration were devolved to the 47 counties pending the enactment of a relevant law.

Need for consultation

In this regard, he invoked sections 23 and 24 of the former constitution which according to the appellate judges remained in force until the first General Election on March 4.

Those provisions had been fortified under section 3 sub-section 2 of the 6th schedule of the current Constitution. The politics around the need for consultations between the then principals before the appointments has consequently been diluted.

Since this is the genesis of viewing the commissioners with circumspection especially by some governors who took the queue from one side of the then coalition, it now behooves all the governors to be prepared to work and live with the reality that county commissioners are here to stay. The ruling has restated the need for collaboration between the two levels of government.

Another interesting aspect of the ruling has to do with the scope of the Attorney General Power’s under article 155. For starters, the successful appeal against the ruling of the High Court as presided by Justice Mumbi Ngugi was lodged by the private firm of Kinoti and Kibe Advocates. This followed the AG’s decision to turn down the appeal on behalf of the then Internal Security minister Yusuf Haji. The government inevitably engaged the services of a private firm despite the protests by the AG among others.

The ruling by the Court of Appeal vindicates that move. On one hand, the court has stated that because the then Internal Security minister had been made a party to the proceedings in the High Court and had subsequently been aggrieved by the decision of the said court, he had a right of appeal as enshrined under article 150 of the Constitution subject to the rules of procedure in the Court of Appeal.

Such right of appeal would have been actualised through the Attorney General but his snub didn’t take it away. The minister, therefore, decided to exercise the said right through a private firm. It is instructive that under article 156(4)(a), the Attorney General is mandated to be the principal legal advisor to the government.

What ‘shall’ means

It is worth mentioning that the Section does not talk about the AG being the sole advisor whether by himself or through delegation for instance to State Law Office counsel.

What this means in other words is that nothing stops the Government from engaging the services of private counsel if it deems it necessary.

The ruling has cleared the air on the meaning of article 156(4) (b) which provides that the AG shall represent the National Government in court or other proceedings where the government is a party.

Use of the word ‘shall’ has been misconstrued to mean that only the AG can represent the Government in those proceedings. It is now clear from the ruling that use of  ‘shall’ only makes it mandatory for the AG to execute his duties without fail! 

The writer is a lawyer with Maina Ngaruiya Advocates.