Yes, County Commissioners are a creation of the law

By Kiratu Kamunya

The reality of devolved government is finally registering after the March 4 General Election. The new concept devolved governments has been greeted with huge excitement.

County governments will not only receive resources, but will actually determine the best allocation criteria of available resources with regard to specific needs.

However in the backdrop of this excitement, a shadow has been cast on the relationship between devolved units and the national government.

The biggest target has been county commissioners appointed by President Kibaki under the Sixth Schedule of the Constitution, which continue to generate controversy. This does not need to be so! It is a phenomenon, which actually arises from a gross misapprehension of law and facts.

National security

Proponents of the anti-commissioners crusade often cite the ruling by the High court last year presided by Justice Mumbi Ngugi, which termed the appointments unconstitutional.

It is important to point out the fact that the ruling drew a lot of controversy amid strong persuasion from certain constitutional provisions pointing to a different direction.

As a matter of fact, an appeal has been lying in the Court of Appeal and is yet to be heard and determined.

In any case, enactment of the National Government Co-ordination Act has conclusively clothed county commissioners with the necessary legitimacy thereby resting the debate on their legality.

Under section 15(1), and in accordance with the national government functions under the Constitution, the Public Service Commission shall in consultation with the Cabinet Secretary recruit and appoint national government administrative officers to co-ordinate national government functions.

These administrative officers include a county commissioner in respect of every county, a deputy county commissioner in respect of every sub-county, an assistant County Commissioner in respect of every ward, a chief in respect of every location and an assistant chief in respect of every sub-location.

Under Section 16 of the Act, a national government administrative officer appointed under the Act shall have all the powers necessary for the proper performance of the functions under the Act or indeed any other written law.

It is critical to note that the role of county governors is restricted to county government functions under the Constitution and does not, for instance, extend to matters of national security, which is the domain of national government.

This is where the commissioners will come in because the Constitution envisages a situation of interdependency between the county and national government.

From the foregoing, it is fallacious to assume that county governments are governments within a government with full governing instruments because their role has been clearly defined in the Constitution. They lack full autonomy to run their affairs without recourse to the national government.

Co-co-ordinators

Under section 20 of the Act, a public officer who immediately before the Acts commencement was serving as a chief, assistant chief or an administrative officer shall be deemed to be a national government administrative officer appointed under the Act.

County commissioners have been serving as administrative officers before the commencement of the Act and thus their role has been confirmed without having to be reappointed under section15.

 Where a dispute arises as to the mandate or powers of any of the officers, or roles of respective officers of the county governments and those of the national Government, a mediation team shall be Constituted to deal with the dispute.

Such a team constituted under subsection (1) shall consist of two eminent persons appointed by the Governor and two eminent persons appointed by the Cabinet Secretary for the time being responsible for national government co-ordination.

Should the team fail to resolve the dispute within the stipulated time, the matter may be referred to the Summit under the Inter-Governmental Relations Act 2012 for resolution.

With such comprehensive framework of law, nothing has been left to chance from the respective role of County Governors and Commissioners to dispute resolution mechanisms in case of any disputes!

It is, therefore, misleading for opinion leaders and politicians to continue vilifying County Commissioners with the danger of spoiling relations between the two crucial offices and are denying the public a chance to enjoy effective service.

As co-co-ordinators of government administrative and security functions, County Commissioners played a crucial role during the just concluded general elections and should be commended for their efforts in securing a conducive atmosphere for conduct of elections where politicians sought to polarise the country!

The writer is a lawyer with Maina Ngaruiya Advocates.