By Isaiah Lucheli
The Government has ignored the Attorney General and launched an appeal over a court’s decision to quash the appointment of county commissioners by President Kibaki.
Constitutional Affairs Minister Eugene Wamalwa who asked the President to officially nullify the appointments on Wednesday while giving an account of his first 100 days in office, also seems to be in the dark over the appeal.
The acting Minister for Internal Security Yusuf Haji has moved to the Court of Appeal to challenge High Court decision to term President Kibaki’s appointment of the 47 county commissioners unconstitutional.
Through lawyer Kibe Mungai, the Government submits that the judgement was based on a fundamental misconception of transition provision of the sixth schedule, which upholds the executive authority and powers of the President as contained in the old Constitution.
The minister claims the assertion that Parliament must first enact a law to provide for the office of the county commissioners was based on misconception.
He explained that the president does not need any additional powers to commence the reconstructing of the Provincial Administration pending the enactment of the law that would finally provide the administrative structure for the national government.
The minister adds that the judgement is based on some provisions of the Constitution that have been suspended until the first general election under the new Constitution.
The Government argues that the reconstructing of the Provincial Administration was supposed to be within five years from the date of promulgation of the Constitution.
The minister says the judgement effectively expands the powers of the Prime Minister by purporting that he should be consulted by the President in relation to appointments, noting that the sixth schedule does not require consultation with the PM.
He submits that the judge erroneously found that the powers of the President under section 23 and 24 of the former constitution are not in force with the sequence that during the transition process the President’s authority to exercise his executive powers would be undermined.