By Eliud Owalo
President Kibaki,just like President-elect Uhuru Kenyatta enjoys limited power during the transitional period as outgoing President because he cannot for example make any appointment at this time or re-organize government departments; a preserve now saved for the incoming government. That is why it was ill advised and in bad taste for the outgoing President to dress down governors at their retreat, even insinuating that use of the national flag is â€œabsolute nonsense â€œ.
Let us examine the Presidentâ€™s statement and the Governors quest to use the national flag for what it really is -a struggle between the forces which want to maintain the status quo i.e. unitary government on one hand and those that stand for a truly devolved government and full implementation of the constitution on the other.
Article I (a) & (b) dispels the notion by President Kibaki that Kenya is a unitary state. The constitution articulates the exercise of sovereign powers at two levels namely the national level and the county level. While the President is the head of state and the national government, the governor is the chief executive of the county government.
The constitution also contemplates a situation in which the two levels of government are distinct but interdependent. A purpose construction therefore of chapter eleven of the constitution then would be that devolved government exists, namely 47 county governments alongside one national government with distinct boundaries and delimitation of powers.
One of those distinct features is that the county government must exist to the give power of self governance and financial autonomy to the people. Chapter eleven of the constitution also has inbuilt checks and balances within the established county government in the form of a county executive and county assembly on the one hand and the Senate at another level not only to supervise but also check activities of the county government.
Strictly speaking therefore the state or national government cannot directly or indirectly purpose to superintend over functions and activities of the county government as this would amount to a usurp of the constitution, thus the powers of national government that could trigger a coup so to speak against a democratically elected and constitutionally recognized county government.
It is against this background that we must understand and contextualize the continuing conflict over power ,space and office between the elected governors and the appointed county commissioners, Section 17 of the sixth schedule to the constitution empowers the national government to restructure within five (5) years the provisional administration to accord with and respect the system of devolved government and justice.
Mumbi Ngugi in a landmark judgment delivered on the 29th of June 2012 while declaring President Kibakiâ€™s appointment of the 47 County Commissioners as unconstitutional upheld the provisional spirit and letter of the constitution on devolved government while recognizing powers of the National government.
For this reason, the county governors must stand their ground and safeguard the gains of devolution under the constitution after the gazettement of all county commissioners on 23rd May 2012 in the special issue of Kenyan gazette notice No.6937 was declared a nullity. Unless fresh recruitment and appointment that respects and follows the constitution is undertaken, these so-called commissioners continue to unconstitutionally encroach into a territory preserved for the county governors in total disregard not only to the court order but also the new constitutional dispensation.