Minister for Internal Security and Provincial Administration vs CREAW (2013) Appointment of the County Commissioners case
On 11th May 2012, Mwai Kibaki appointed 47 persons to be county commissioners. These appointments sparked a great deal of public debate challenging the constitutionality and legal basis of the said appointments.
- Whether the President violated the constitution in appointment of County Commissioners.
- Whether there is an interface between the former and the new constitution as regards the exercise of executive powers.
- Whether the President had an obligation to consult the Prime Minister on the appointment of County Commissioners.
- Whether the appointment of the County Commissioners violated the principles of gender representations.
- Whether the President is subject to civil litigation in the event of violations of the constitution.
The petitioners cited:
- Violation of parts of the constitution that guarantee equal treatment and opportunities to men and women to the effect that the county commissioners comprised of 10 women and 37 men contrary to the provisions of Article 27(3) of the constitution which states
Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
- The appointments were done in an secretive manner as there was no advertisement therefore no accountability contrary to section 10(2 c) which states:
The national values and principles of governance include good governance, integrity, transparency and accountability.
The petitioners sought for a declaration that the appointments be declared null and void.
The petitioners sought the following reliefs:
- Order of certiorari – to quash the decision of the president in regards to the appointment of the commissioners.
- Order of prohibition – to prohibit the president from swearing in the said 47 commissioners, and if swearing in had already taken place, to prohibit the said ccs from assuming office
- Order of mandamus- to direct the respondents to comply with the constitution and to advertise the position of ccs taking into account gender parity, regional balance and public participation.
Articles 129 to 155 of Chapter 9 of the Constitution of Kenya, 2010 were all suspended until the 1st general elections after the constitution. The executive powers and authority of the President were retained under Section 23 and 24 of the former constitution.
The suspension of the executive powers of the executive meant that the President was exercising the executive powers under section 23 and 24 of the former Constitution that gave him the authority to establish offices in the Republic of Kenya and to appoint officers thereto.
The court observed that Section 29(2) of the 6th Schedule of the Constitution of Kenya, 2010 provided that only new appointments by the President that needed approval of the National Assembly required consultation with the Prime Minister under the National Accord and Reconciliation Act.
The alleged “appointments of county commissioners” were not new appointments but rather were redeployment of existing officers, and more importantly, they did not require the approval of the National Assembly, and in that regard, consultation with the Prime Minister was not a statutory requirement.
As to the immunity of the President in respect of civil and criminal litigation, the court observed that if the President violated the law, he or she could only be subjected to the process of impeachment; however the former constitution never had provisions for impeachment.
Lady Justice M Ngugi delivered a judgement and she declared as follows
- The president had no power to appoint or deploy ccs as he purported to do under Gazette Notice 6937 of 23rd may 2012
- Even if the president had had power to make such appointments or deployments, the appointments violated articles 10 and 27 of the constitution.
- The appointment of the county commissioners was therefore declared null and void.
This petition raises critical issues on the exercise of power by the president under the constitution. It raises questions with regard to the obligation of the president to be faithful to the spirit of the constitution, and seeks to reestablish the constitutional benchmark for the exercise of the executive power and the right of citizens to question and challenge any deviation or perceived deviation from the spirit of the constitution.
It is important that anything that is done in order to implement the new constitution is done so as to faithfully accord with the provisions of the constitution. It will do great damage to Kenyans if the country continues on the path of disregard for the provisions of the constitution.