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This week the High Court ruled the recent appointment of 47 county commissioners, by President Kibaki, illegal and nullified said appointments. The court not only ruled that the Head of State lacked the authority to make the appointments, but also that the appointment of the 47 commissioners breached several provisions of the constitution. How? The principle of gender equity was ignored, the appointment of the county commissioners was made unilaterally by the President without requisite consultations as required by the National Accord and Reconciliation Act, and finally the appointments were not made through an open, competitive, or participatory process.
The Constitution Implementation Commission (CIC) also opposed the President’s appointment of the 47 county commissioners with the CIC head, Charles Nyachae, saying of the appointments, "what the president did was clearly not right...we also expected the process to be conducted in a transparent manner with public participation...why should Kenyans wake up to be told they have 47 county commissioners....we will engage the Executive and if it does work, we will consider other options."
If this sounds familiar, i.e. unconstitutional appointments by the Head of State, it is probably because it is. Last year unconstitutional appointments for the positions of Chief Justice, Attorney General and Director of Public Prosecutions were made by the President. The violations of the constitution in the case of the flawed appointments, of the Director of Public Prosecutions, Attorney General and Chief Justice, were very similar: lack of gender balance, lack of consultations, and the absence of a participatory competitive recruitment process. However a combination of public pressure and a judicial ruling on the illegality of the appointments later led to the appointments being revoked and constitutional appointments being made.
However in this instance in defiance of the CIC and the High Court's ruling, on the unconstitutionality of the appointments, the government, and the Executive arm in particular, has ordered the county commissioners to remain in their positions pending an appeal of the court's decision. "I assure you that you are here to stay as we expect a fair judgment after the appeal," the Permanent Secretary in the Ministry of Internal Security Mutea Iringo stated on Monday.
At this point it would be difficult of anyone to believe that the Executive, Head of State included, does not know the provisions of the constitution as regards appointive positions, particularly since the procedure for recruiting for such appointments has been the subject of previous litigation. So I'm sure I am not alone in wondering why the Executive continues to refuse to comply with the constitution particularly where appointments are concerned. As it stands the Attorney General has advised against the appeal of the High Court's ruling on the appointments, however whether the appointments will be revoked or not, is anyone guess.
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