Lawyers are headed for a legal showdown after taking different positions on President Mwai Kibaki’s appointment of 47 county commissioners last Friday.
The Nairobi Lawyers Association (NLA) on Thursday defended the appointments and said they would be seeking to be enjoined in an ongoing court case aimed at reversing the appointments.
Lobbyists Patrick Njuguna and Charles Omanga, under the banner of Youth Platform for Change (YPC), went to court on Wednesday, this week, arguing that the appointments amounted to abuse of power by the Head of State. They said he had ignored pertinent constitutional provisions.
This sets them on a collision course with members of NLA who say they are ready to give their interpretation of the law in court.
“We are preparing our counter arguments and shall be seeking to be enjoined in the suit since we believe the President was within his mandate when making the appointments,” Dann Mwangi, the association’s Secretary-General said.
“The appointments are in line with Section 17 of the Sixth Schedule of the Constitution which prescribes the manner in which the Provincial Administration is supposed to be restructured in line with the new constitution.”
Mr Njuguna and Mr Omanga, through their lawyer Anthony Oluoch, want the commissioners barred from drawing salaries or allowances, arguing that their appointment was illegal.
Lady Justice Githua declined to suspend the appointments but certified the suit as urgent. She directed the matter be heard on May 24 with all parties present.
Attorney -General Githu Muigai and Internal Security minister George Saitoti have been named as respondents in the suit.
YPC is seeking to compel both the A-G and Prof Saitoti to advertise the positions and subject the them to competitive recruitment while at the same time considering gender parity, regional balance and public participation.
The NLA acknowledged that the appointments failed to meet the threshold of women representation and the issue of disability as spelt out in the Constitution.
They argue that since the 47 commissioners were to be selected from the existing personnel, which they say is historically gender skewed, meeting the gender quota was “practically impossible.”
This deficiency, which has already been raised by Chief Justice Willy Mutunga, also forms part of the suit in court.
Mr Njuguna and Mr Omanga are further questioning the speed at which the appointments were made, given that the law allows the national government up to five years to align the provincial administration.
They said the appointments were made in bad faith and “should be declared void since the decision was made before the creation of County Government.” It is like putting the “cart before the horse,” said the activists.