The State continues to defy a High Court ruling that declared the recent appointments of county commissioners “null and void” because they were unconstitutional.
The commissioners were still in their new offices on Tuesday allegedly discharging their duties even after the High Court revoked their appointments.
This has set the stage for a major clash of wills between President Kibaki and the Judiciary, as the commissioners operate in the Ministry of State for Internal Security that is under his office.
The High Court ruling was on petition 208 challenging the constitutionality of the appointments or deployments by the President of 47 county commissioners by way of Gazette Notices issued on May 11 and 23.
“The ‘appointments’ or ‘deployments,’ whatever term is used, assuming that the President had power to make them, fail the test of constitutionality by disregarding the national values and principles set out at Article 10(b) and the principle contained in Article 27(8) of the Constitution,” said Justice Mumbi Ngugi.
She noted, “The President is under obligation to ensure that he, too, helps to move the country forward and to respect the values and principles of the Constitution. He did not do this in the present case.”
She added: “If a position does not exist, it is clearly not possible to ‘deploy’ officers to or from such non-existent position. The office would have to be created first, then appointments made, before ‘deployment’ or ‘re-deployment‘ to that position can take place. Clearly, Gazette Notice No.6937 of May 23 was an attempt to cure what was not curable.”
Stressing on the need to operate within the Constitution, Justice Ngugi said Kibaki should have consulted Prime Minister Raila Odinga and sought the approval of Parliament on the matter.
She concluded that Kibaki had no power to appoint or deploy the commissioners and that he violated Article 10 and 27 of the Constitution.
“The purported deployment of County Commissioners by Gazette Notice No. 6937 of May 23, 2012, was therefore unconstitutional, null and void,” she concluded.
Some of the commissioners, when contacted by The Standard, opted not to respond to our queries saying they were not allowed to comment on the matter.
County Commissioner Abdi Hassan in Uasin Gishu County told The Standard he was held up in a meeting.
Mr Hassan said in a text message: “I am around, but for now I am attending to some work. I will get back to you when I’m done.”
Efforts to contact Elgeyo/Marakwet County Commissioner Mohamed Birik were fruitless, as several calls to his mobile phone went unanswered.
Baringo County Commissioner Benard Leparmarai declined to comment on the matter, but instead referred us to his seniors in Nairobi.
“I cannot comment on the matter for now. You may talk to our seniors in the Provincial Administration headquarters in Nairobi,” Leparmarai said on telephone.
In Trans Nzoia County, Commissioner Charity Chepkonga, was in her office discharging her duties since Tuesday.
When The Standard visited her office, a senior official who requested anonymity, said the commissioner was still working but was not around at the time.
“The commissioner is present even today, but has gone for lunch and she will be back in office in the course of the day,” he said.
In Pokot County, Commissioner Peter Okwanyo, was also working in his office.
Sources within the office hinted that Mr Okwanyo is on Wednesday expected to chair a meeting on elections and issues touching on hate speech.
The commissioner will chair the meeting at Mtelo Hall in Kapenguria.
Most of the six county commissioners in Nyanza Province are still in office, a week after the High Court nullified their appointments.
Kisumu Country Commissioner Lorna Odero was at work on Tuesday, but left early in the afternoon.
“She will be in the office tomorrow morning,” one of the staff at her office told The Standard.
Ms Odero has been serving the county from the office of former Kisumu East DC Mabeya Mogaka, who was recently moved to the Office of the President.
A visit to Kisii County Commissioner Lydia Muriuki’s office established that it was business as usual.
Mrs Muriuki told The Standard she was in office discharging her duties in accordance with her appointment. The county is peaceful and if you have heard of anything touching on security let me know,” she said.
The administrator said she had not received any other communication other than the one appointing her to the position.
At the office located at Kisii District headquarters, locals were queuing to see Muriuki, one of 10 women county commissioners, a move civil society say is far below the one-third-gender balance the Constitution requires.
Before the presidential appointment, Muriuki had been serving as Eastern Nyanza regional commissioner covering Kisii and Nyamira counties. She was appointed to the position in 2009.
She said her office was overseeing security preparation for the Agricultural Society of Kenya, Southern Nyanza Trade Fair at Gusii Stadium, tomorrow.
In Homa Bay County, Samwel Otieno was in office, but declined to speak to The Standard on any matter related to his administrative duties.
“Security issues are so sensitive that I cannot discuss them with The Standard or any other private media house,” he said.
He added that he could only share information with the State-owned Kenya News Agency and Kenya Broadcasting Corporation.
But Migori CC Anne Ngetich has not reported since the induction course for the 47 county commissioners in Nairobi, last week.
Nyamira County Commissioner Wilson Wanyanga was working on Tuesday in his office in Nyamira town. But he did not respond to calls from The Standard.