THE High Court yesterday declared the appointment of 47 county commissioners by President Kibaki unconstitutional. Justice Mumbi Ngugi said the appointments were not gender sensitive adding that President Kibaki did not consult Prime Minister Raila Odinga before making the appointments.
According to the judge President Kibaki had no powers to make the appointments since the positions were non-existent. The judge added that under section 29 of the National Accord, the President is to consult the Prime Minister on such appointments. She said the appointments were in breach of principles and values of governance which include gender parity, public participation and the need for consultation. The judge said it was critical to have the general public participate and give a chance to those who wish to hold the positions to participate. She faulted Kibaki's move to deploy the commissioners saying it does not cure the anomaly.
A number of lobby groups, including Centre for Rights Education and Awareness moved to court to challenge the appointments. It was the group's contention that the said nominations were unconstitutional because they are insensitive to gender equality. Only 10 women out of the 47 were appointed as county commissioners. Their functions include security management, coordination with the national government, delivery of services and promoting national cohesion.
The lobby groups, however, argued that the commissioners were not procedurally recruited as required by the constitution with regard to public office holders. The petitioners sought a declaration that the appointment of more than two thirds of the male gender and less than a third of the female gender to the office of county commissioner is gender insensitive, discriminatory against women and contrary to articles 27, 129 and 131 of the constitution.
After the ruling, the applicants welcomed the decision saying the judiciary has asserted its authority and human rights have been respected. The group said it is victory for Kenyan women and the people have been vindicated. "The court has asserted its authority and it is a clear indication that the culture of impunity is long gone. The President should have consulted the Prime Minister and also sought approval of Parliament before the appointments," lawyer Anthony Oluoch said.