Ruling on county commissioners was legally unsound

By Kiratu Kamunya

The ruling by Judge Mumbi Ngugi dismissing deployment of county commissioners by the president comes across as judicial activism rather than a decision faulting actual violation of the Constitution.

In her one-sided prelude to the determination of issues raised by the parties, she irrevocably set the stage for trashing the President’s decision and her mind appears shut from the onset on the possibility that the President could have been right at all! The Judge appears to have predetermined the outcome of her findings.

Protecting the Constitution from violation in its nascent stage is the highlight of her introductory remarks and she underscored the need to uphold fidelity to the Constitution as a way of realising Constitutionalism and the rule of law in the long term.

While it is desirable for the Judiciary to be in the front line in safeguarding citizens concerns over violation of the Constitution, it would have been fair for the judge to save the best for last by making an observation based on the findings after thorough analysis of the petitioners and respondents arguments. She appears to have put the cart before the horse.

It is, therefore, easy to see why the ruling ended up with various antimonies. For instance, on the question of gender, it does not suffice to say that progressive realisation is a preserve of article 21 on the rights and freedoms guaranteed under article 43 or article 54(2) on the rights of persons with disabilities. Her argument is that article 21 is pegged on availability of resources for that matter.

If this were the case the Constitution would not talk about article 54(2) on the disabled people in the same vein since this does not involve material resources. This leads to the inevitable conclusion that this holding is wrong.

The Constitution could not have intended to discriminate against the disabled people in elective and appointive bodies by giving preference to women in requiring that progressive realisation apply to the former but not the latter.

Curiously the ruling overlooked the fact that even though the president picked ten out of the available 26 women subject to other considerations, and 37 men out of the available 286, this clearly represents 38.4 per cent for women and a mere 12.9 per cent for men in terms of those who were considered for redeployment from each group.

On the President’s authority to appoint Commissioners, the ruling was wrong in holding that executive authority under section 23 and 24 of the former Constitution is not saved by the Transitional Provisions as captured under the Sixth Schedule. Section 3 Subsection 2 of schedule 6 is categorical that “provisions of the former Constitution concerning the Executive are preserved until the first general elections conducted under the current Constitution.”

Of course section 23 and 24 grants the President the mandate of exercising executive authority in constituting or abolishing offices for the republic of Kenya and this was the basis for constituting the county commissioners.

Having overlooked this critical preservation clause in the 6th schedule, the Judge proceeded to misdirect herself to the presidential powers as contained in Article 131 of the current Constitution as they are suspended sections.

Non-ambiguous

After establishing that executive authority as provided for (section 23 & 24 of the former Constitution) has been preserved in non-ambiguous provisions in Section 3 Sub-section 2 of the 6th schedule, the issue of public participation through advertisements by the PSC does not therefore arise.

Section 17 of the 6th schedule talks about restructuring the provincial administration. Restructuring does not involve abolishing the provincial administration. This is the foundation upon which the president redeployed the county commissioners since they were already serving official in the provincial administration.

In fact, throughout her ruling the Judge enumerated the number of women eligible for posting as commissioners. By so doing, the court was acknowledging that these positions were availed to existing officials.

It is thus incredible that the court would still find the use of the word redeployment in the 2nd Gazette notice as inappropriate by arguing that there cannot be redeployment from non-existing positions. So from what positions did the president fail to observe the gender principle requirement? And why would the Judge talk about 26 women being eligible for appointment if these positions were non-existent to begin with?

On consultations between the President and the Prime Minister, the President under the National accord and Reconciliation Act is only required to consult the PM where the Constitution requires an appointment to be made by the President with the approval of the National Assembly. Redeployment of the commissioners did not involve major appointments in the manner contemplated under section 29(2) of the sixth schedule.

It is also inappropriate for the court to hold that restructuring by the national government can only involve legislation by parliament and nothing more. If this were to be the case, the Constitution would have expressly required parliament to enact legislation to this effect.

Restructuring involves many facets of reorganisation and legislation is only one of them. The role of restructuring provincial administration is a preserve of the National government and the ultimate Constitutional objective is to have the organ accord with and respect the system of county governments.

The writer is a lawyer.

[email protected]