Constitutional and Judicial Review Judge Cecilia Githua on Wednesday declined to suspend the appointment of 47 County Commissioners but directed that a suit lodged by two members of the civil society be fast-tracked.
Youth Platform for Change (YPC) Patrick Njuguna and Charles Omanga moved to court seeking to quash the appointment of the County chiefs named last week by President Mwai Kibaki. They are seeking orders to suspend the appointments and the implementation of the President’s decision.
After certifying the urgency of suit, Lady Justice Githua directed the matter to be heard on May 24 when all parties are present. The two have named Attorney General Githu Muigai and Internal Security minister Prof George Saitoti as respondents in the suit.
Mr Njuguna and Mr Omanga through lawyer Anthony Oluoch asked the judge to issue orders blocking the swearing in of the 47 commissioners but she declined.
The activists also want the commissioners to be barred from assuming office or drawing any salaries or allowances arguing the appointments were made in breach of various provisions of the law.
The two made it clear that the appointments were made in bad faith and “should be declared a nullity since decision was made before the creation of County Government.” It is like putting the “cart before the horse,” said the activists.
They are seeking further orders compelling the A-G and Prof Saitoti to comply with the Constitution by advertising and subjecting the positions of commissioners to competitive recruitment and considering gender parity, regional balance and public participation.
Court papers filed by the activists allege that the purported appointments was abuse of power by the Head of State and accused him of ignoring pertinent constitutional provisions that demands involvement of the people in the process of policy making, accountability, transparency, fair competition and equal representation.
Violation of law
The lawyer argued that Section 17 of the Sixth Schedule allowed the national government up to five years to align the provincial administration and there was no justification for the rush to make the appointments prior to the enactment of a Devolved Government Bill which will guide the establishment of County Governments.
Mr Oluoch said the appointments were in violation of Article 27 of the Constitution which prohibits discrimination on the basis of gender.
He added that the appointments to the extent that they were done without consultation with the Prime Minister were a breach of the National Accord and Reconciliation Act which forms part of the Constitution.
Last Friday, President Kibaki named 47 County Commissioners and a statement from State House said he had acted in line with Section 17 of the Constitution’s Sixth Schedule.
According to the gazette notice by the President, the County Commissioners will coordinate security, national government functions, delivery of services, facilitate conflict management and peace-building, and mobilise national government agencies for national events and programmes in the counties.