County Commissioners are Crucial to Transition.

The appointment of County Commissioners by the President has become one of those legal hiccups that ultimately accompany the implementation process of a new constitution. When Lady Justice Mumbi Ngugi ruled that the president’s appointment of the 47 County Commissioners was unconstitutional, it really was not a win for the citizens. The need for security and administration to be ensured even as this government transitions to a devolved system was clearly overlooked.

At the moment, Kenya is a country undergoing fundamental change in the way the government runs things. It’s no secret that Counties such as Uasin Gishu were the worst hit by Post Election Violence, a matter that has been repeatedly raised by the residents. In their appeals, they have asked that the County Commissioners be left in place so as to smoothen the transition of government even as the general elections come up. No doubt, the scale of the violence they experienced is still fresh in their minds.

The reasons presented to challenge the constitutionality of the appointments can only be described as a simplistic approach to a serious challenge. The argument of application of the 1/3^rd gender principle indicated that were the 47 Commissioners of the right gender, then the appointments would be acceptable. The arguments of consultations with the Prime Minister’s office indicated that were such consultations done, then the appointments would be acceptable. In the determination of said appointments being unconstitutional, the remedy for the situation was never considered. How indeed, is Kenya going to transition to a new devolved system of governance if there is no longer a provincial administration at the county level and also no County Commissioner?

This was not just a matter for constitutionality. Indeed, the ruling should have taken into consideration the grave matter of national security as administered at the county level as well as other services to be rendered by the Office of the President. Where is the remedy for the residents of Uasin Gishu?

It’s becoming clear that even as Kenya implements the new constitution, there are several opportunities for well meaning activists to cause more harm than good with overzealous approaches to matters of governance. We should indeed follow the letter of the law, and in the spirit of the law, provide legal alternatives.

Its why, though Attorney General Githu Muigai did give what in his legal opinion is the better course of action given the probabilities of winning an appeal, acting Internal Security Minister Yusuf Haji is also right in seeking an appeal. It’s his job to ensure that the security of the country is not put at stake especially as we approach the elections and especially in the face of terror threats and bombing incidences. An appeal can give him the sort of relief that can allow him and the government time to ensure that security apparatus are adequately prepared for the elections, and the expected transition of government.

As the residents of Uasin Gishu will testify, the threat of political violence is very real, and not something that should be determined by the gender of Commissioners. Certainly, the matter of security at the County level should not be left to politics of consultations by the President over matters in his own office, either. I mean let’s face it, these posts were not expected to be permanent appointments anyway, because when the new government takes over, the process of appointment would surely be redone.

In arguing against the constitutionality of the appointment of County Commissioners, detractors also argued against the fundamental rights to security of Kenyans who already have suffered greatly during elections because of politically instigated violence.

What is necessary is circumspection. An approach to the new government and constitution that is not only legally sound, but also takes into consideration all the responsibilities and functions of the government and the implementation of those functions. As it is, Kenya still does not have a solution for the situation at the County Level, and that leaves us all in a state of limbo. For the residents of Uasin Gishu and other Counties that experienced PEV, limbo is not a state they wish to remain in. This matter needs some sincerity and commitment from all of us lest the events of 2007/08 are repeated.