On March 6, 2015, President Uhuru Kenyatta exercised powers conferred upon him by the Constitution and the County Government Act to appoint a commission of inquiry to consider and advise him on a petition filed by the residents of Makueni County.
The petition sought the dissolution of the county under the provisions of Article 192 of the Constitution. On September 3, the Commission of Inquiry into the Petition to suspend Makueni County chaired by Mohammed Nyaoga presented its report to the president at a ceremony in State House, in Mombasa.
Having reviewed the commission’s report and recommendations, the president declined to suspend Makueni. The president argued that the failures in Makueni did not meet the threshold required to dissolve the county government.
This decision has met praise in most instances. But a few people are also concerned with the decision, asking why spend taxpayers’ money to carry out an inquiry only to ignore its findings.
The president’s action raises several legal and political issues that should be appreciated by all Kenyans, more so those keen on debating the merits and demerits of his decision.
First, from a legal standpoint the decision is sound. From a political standpoint too, the decision is correct. However, on its own it is insufficient. It requires follow-on action to ensure that the issues surrounding the operations of Makueni government are comprehensively addressed.
The law on suspension of counties is captured both in the Constitution and County Governments Act. The two legal issues are what conditions require to be satisfied to suspend a county government and, secondly, the role of the president in the process. Article 192 captures two scenarios when a county government can be suspended.
The first is when there is an emergency due to internal conflict or war. The second relates to “exceptional circumstances.”
This second condition was the basis for the petition for suspension of the county government. Having listened to evidence and analysed the same, the Makueni Commission was convinced that the county government deserved to be suspended and made this recommendation to the president.
The Constitution recognises that suspension of a county should be undertaken only where exceptional circumstances exist to warrant such drastic action.
Secondly, it provides for several stages in arriving at that decision, with the findings of an independent commission of inquiry only one of the stages. The president is expected to consider the recommendations and make a decision.
To avoid past instances where the president sat on reports of commissions of inquiry, there is a timeframe of seven days within which the consideration is to be made.
The Constitution does not obligate the president to accept the verdict of the commission. His rejection of their recommendation and refusal to suspend the county government is consequently within his legal powers.
It should also be pointed out that even if he had accepted their recommendation, the suspension would also have to be authorised by the Senate.
And even at the Senate level, there was a possibility of the suspension being rejected. These multiple layers are necessary to ensure that this action is taken only in limited circumstances.
The rationale for this is not just legal; it is also political. This is also where we think more must be done after the president’s verdict.
Politically, the genesis of the conflict in Makueni may be multifarious but can largely be attributed to disagreements between the executive and legislature, with its greatest manifestation being the differences between Governor Kivutha Kibwana and the Speaker of the County Assembly.
Politically, we have to ask ourselves whether enough has been done to find political solutions to the problems in Makueni. Is it fair to allow grandstanding to be the basis of dissolution of a county government with its attendant political and economic costs to the county and country?
Bearing in mind that devolution is fairly young, there was also the danger that the suspension would set a precedent for other counties. One may ask, what is wrong with precedence?
The problem would largely be that of leadership failing to realise the great responsibility that gets bestowed on them by the citizenry through elections.
But the underlying messages from this process should also not be lost even as the various relieved parties celebrate. There are negative aspects of the implementation of devolution that must be addressed.
It is wrong to let elected leadership put their personal aggrandisement at the forefront and disregard serving citizens.
Cases of grandstanding between county executives and county assemblies in the budget-making process must be arrested. So, too, should connivance between the two arms of government that harms public interest.
Recent media reports of fraudulent expenditure in certain counties point to failure or refusal to appreciate that Kenyans sought to improve the lives of all, and not of a few, when they adopted devolution.
Secondly, we have to give meaning to the high standards of leadership that the Constitution demands.
The suggestions by the president that political means should be explored to resolve the Makueni situation is necessary so as to inculcate a culture of exploring solutions to intractable problems.
If leaders cannot resolve such stand-offs, how can they be expected to address the challenges facing their counties?
However, political solutions should not be a basis for ignoring the legal malfeasances documented by the Makueni Commission.
If we are to set a basis for ethical and responsive leadership as demanded by the Constitution, then the many instances where the law was broken by the leadership in Makueni must be punished.
The explanation that elections provide an avenue for dealing with these infractions is escapist. We have to ensure leaders serve within the confines of the rule of law.
Consequently, conduct that offends the various laws, including those on integrity, anti-corruption and prudent management of public resources, which were documented in Makueni must be pursued by relevant government agencies.
Dr Odote teaches at the University of Nairobi.