By Ally Jamah
Kenyans responded with anger at reports that county commissioners had ignored a High Court order to vacate office.
Justice Minister Eugene Wamalwa asked President Kibaki to officially nullify the appointment of the 47 officers.
Speaking on Wednesday in Nairobi, the minister said he advised the President to withdraw the appointments out respect for the High Court ruling that declared them “unconstitutional, null and void”.
Said Wamalwa in his office: “We (Government) must lead by example and show that we respect the rule of law by respecting the institutions that we have put in place. It is the country’s interests to inculcate the culture of the rule of law. ”
He added: “Acting from my position, I have tendered my view to the President and the Attorney General (Githu Muigai) has also done the same. So I believe the President is properly advised on the matter and will soon be making a decision.”
The Attorney General’s office has advised the Government not to appeal the decision since they will most likely lose the case.
On his part, Heritage Minister William ole Ntimama issued a scathing attack on the defiance by the President and top civil servants to respect the ruling of Justice Mumbi Ngugi, saying it does not bode well for the implementation of the Constitution.
“History is repeating itself here. Some people are trying to block the full implementation of the Constitution. It would be a disaster if they succeed,” he said.
He cited the abrogation of the Lancaster House Constitution after Independence only a year after it had been promulgated, and its replacement with an authoritarian version.
“The decision of the High Court must not only be respected; it must also be obeyed. What makes a nation functional is the Constitution and the rule of law,” said Ntimama.
He said acting Head of the Civil Service Francis Kimemia and Internal Security Permanent Secretary Mutea Iringo should not be allowed to deny Kenyans their constitutional rights.
Imenti Central MP and lawyer Gitobu Imanyara said the county commissioners risk arrest and prosecution for contempt of court for staying in office illegally.
He asked them to individually announce that they have vacated their offices. He explained that they might face prison terms for their illegality.
Legal means
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“Each county commissioner will be held accountable for continuing to stay in office illegally in contravention of the court order. So they must individually comply with the order and leave office immediately,” he said.
Efforts to get comment from Kimemia failed as his phone went unanswered. On Monday he told The Standard he was in discussions to find a solution.
On Wednesday, a host of other leaders voiced different opinions over the State’s rationale in defying a High Court ruling that declared the appointment of county commissioners unconstitutional.
The leaders said the State should respect the other arms of Government and be at the forefront of respecting the rule of law.
Eldoret Catholic Diocese Bishop Cornelius Korir said the State’s utter disregard for the law renders it meaningless to the ordinary Kenyan and creates room for impunity to thrive.
“Government should seek legal means of reversing the High Court ruling if they wish to maintain their stand, but not by force,” he said.
Bishop Korir urged Kenyans to abide by the rule of law for the country to stick together.
His Anglican counterpart Bishop Christopher Ruto raised concern that a few forces in Government with vested interests are taking hardline positions as was witnessed during the 2007 General Election.
“Our fear is that constitutional gains are meaningless if the various arms of Government, especially the Executive, malign the Judiciary,” stated Bishop Ruto.
He said the State’s conduct was setting a bad precedence. He proposed that the commissioners be relieved of their duties or redeployed in various Government departments as they await future competitive appointments.
Many of the county commissioners contacted said they are not disrespecting the High Court decision, but are waiting for communication from their superiors in Nairobi. They added they could not act without the decision of the appointing authority.
Early this month, the High Court ruled that the Head of State lacked the legal authority to make the appointments. Justice Mumbi Ngugi also said that Kibaki went against the spirit of the National Accord and Reconciliation Act 2008. ?
“The Act requires him to consult Prime Minister Raila Odinga whenever appointments to senior Government offices are made,” she said.
Kimemia and Iringo have remained silent as the commissioners continue serving.
“We will consult to know the way forward” is all Kimemia would say, when asked on Monday why the commissioners were still holed up in their offices.
Last week, Attorney General Githu Muigai wrote to Iringo, telling him that he (Muigai) would not appeal the High Court decision that revoked the May appointments by Kibaki and sealed the fate of the commissioners.
“Please be advised that the Office of the Attorney General will not appeal against the decision of the High Court,” said the letter to Iringo.
Ntimama claimed the officers were strategically posted to help a section of the Government rig the General Election.
“We must reject all those commissioners because I know they are on a mission to rig elections. They will not only rig Raila Odinga’s votes, but even your preferred governors, senators, MPs, and even county representatives,” claimed Ntimama.
MPs John Mbadi and Millie Odhiambo criticised Iringo for allegedly undermining the Judiciary by urging the commissioners to ignore a court ruling that nullified their appointments.
Personal charge
Mbadi warned Iringo that were the commissioners to draw salaries as from the day their appointments were declared a nullity by the court, then he should be ready to be surcharged.
“I will personally move to court to have the PS surcharged for any penny the commissioners will have earned as from the time they were declared to be illegally in office,” said Mbadi.
Chairman of the Constitution Implementation Commission Charles Nyachae wrote to President Kibaki in May seeking clarification on the appointments.
He said while the Office of the President had argued the appointments were merely a deployment of officers, other senior Government officers said it was to streamline the Provincial Administration in line with the Constitution.
“If the appointments were on the basis of what Vice- President Kalonzo Musyoka said, then it is against the law,” Nyachae said in May.
Kalonzo had said the President had acted within the law by appointing the county commissioners.
“The appointments are in line with Section 17 of the Sixth Schedule of the Constitution,” the VP said during Wiper Democratic Movement presidential campaigns in Narok North District.
Energy minister Kiraitu Murungi also said the appointments were in line with the law, while Kimemia said the commissioners were to lead heads of national government departments in the counties.
Additional reporting by Michael Wesonga.
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