Petition to suspend Makueni County premature

NAIROBI: The petition for dissolution of Makueni County pending before an independent commission formed by the President is premature for three reasons. First, the primary intervention under the Constitution should have been the Cabinet Secretary in charge of inter-governmental relations; not the President.

Secondly, the County Government Act does not define the exceptional circumstances under which the President can suspend a county government. The law governing the process is therefore uncertain.

Makueni County is not a case study in exceptional circumstances; any attempt to set it as a benchmark for exceptional circumstances will undermine the independence of county governments from the National Government. It is natural that county governments, still at their infancy, will face a myriad challenges. Not every challenge to these county governments will deserve the cry of “wolf”.

Thirdly, should Makueni County be suspended, the Constitution provides that the Governor and his deputy will continue to manage Makueni County for the 90 days that the county government will be in suspension. However, the County Government Act provides that the President will appoint an Interim County Management Board. The law and the Constitution contradict each other and throw further uncertainty into the outcome of the process.

The national and county governments are two levels of government. Both derive their power from the people of Kenya under the Constitution. The two levels of governments are equal and none is subordinate to the other.

Historically the National Government has exercised immense control over local governments, including the power to dissolve local authorities under the repealed Local Government Act. That changed with the new Constitution. The National Government now has a limited measure of oversight over county governments under Articles 190, 192 and 225 of the Constitution. They are only two branches of government at the county level: the County Assembly and the County Executive Committee. The functions of the county government are performed jointly or separately by the County Assembly and the County Executive Committee. A county is deemed unable to perform its function if either the County Assembly or the County Executive Committee or both fail to perform their functions.

Under Article 190 of the Constitution the National Government may intervene in a county government if it is unable to perform its functions or if it does not operate a financial management system that compiles with the requirements of the law.

This intervention can be made in two ways. First, the county government can request the Cabinet Secretary in charge of inter-governmental relations for support to the county. Secondly, the National Government can, after giving notice to the county, take measures to support the county without waiting for a request for intervention.

The Constitution, under Article 192, gives the President the powers to suspend a county government in an emergency arising out of internal conflict or war or in any other exceptional circumstances. Inability to perform functions is not an exceptional circumstance. It can only become an exceptional circumstance only after the intervention by the National Government through the Cabinet Secretary fails. Not before.

The powers of the President for suspension, like salt, should be used sparingly. The recommendation to suspend a county government by an independent commission and the approval by Senate because of exceptional circumstances should only be applied on rare occasions.

The Independent Commission formed by the President to Investigate Makueni, and the Senate who will approve or reject the Commission’s report, should ask themselves the question whether a request by the Makueni County Executive for intervention, or the direct intervention by the Cabinet Secretary would be sufficient.

In the face of the inevitable challenges, County Governments should not cede their power and authority to National Government. By doing so, they will undermine both their independence and devolution as a whole.