President Mwai Kibaki's list of appointees for top county jobs has run into fresh hurdles after two activists moved to court seeking orders to bar them from taking office. Also sought by the activists is an order to suspend appointment of the 47 county commissioners. The decision by Kibaki which is being challenged is contained in gazette notice dated May 11.
The two Patrick Njuguna and Charles Omanga enlisted a number of reasons as to why the appointments by Kibaki was flawed and should not be allowed to stand.
Firstly they said Kibaki in his decision to appoint 47 failed to take into account the competitive recruitment procedures. He failed to observe gender balance, regional balance and public participation which are provided for under the constitution. Kibaki is also said to have failed to advertise representation of marginalized communities.
Most importantly they said the head of state breached the national accord which requires him to consult with Prime Minister Raila Odinga before making such appointments. "The President has purported to make appointments of county commissioners to non existent county structures," said the two. The activists contend that Kibaki's appointments are bad in law and illegality because they have been done in breach of the law and without consultation.
The activists said the legal framework for the creation of the devolved government has not been passed into law and the appointment of county commissioners ahead of these amounts to putting 'the cart before the horse.' They now view the decision by the head of state as a threat to the constitution which ought to be nipped in the bud by suspending it.
In their suit papers filed through lawyer Antony Oluoch the activists also noted that the appointments go against section 2 of the constitution which says that the constitution is the supreme law of land and binds all persons. They further noted that no one is to claim that he or she can exercise state authority except as authorized by the constitution.
The county commissioners are entrusted with the duties of coordinating security management, national government functions, facilitate conflict management, implementation of national government policies and maintain administrative boundaries, security and roads among others. The Premier is on record rejecting the list saying he was not consulted. Others who opposed the Kibaki nominees included Law Society of Kenya and federation of Kenya Women Lawyers which said gender balance was not taken into consideration.
This is the second time President Kibaki's nominees are rejected. And on both instances the appointments have ended up in courts seeking nullification and adherence to constitutional provisions in state appointments. The first one to be rejected publicly was the list of Kibaki's nominees for Chief Justice, Attorney General and Controller of budgets which ended up being withdrawn. The reasons for rejection in the nominees for judiciary job were also lack of gender balance and consultation with the Prime Minister. Yesterday high court judge Cecilia Githua certified the matter by the two activists as urgent and directed the parties to come back for hearing on May 24.