State in dilemma over new districts

For a long time, the President’s word has been taken as law in Kenya. And so it was when he created more than 200 new districts between 2005 and this year.

But a High Court ruling early September has officials scratching their heads over the establishment and future of the new districts created by presidential fiat.

In a ruling following a constitutional application by lawyer Job Nyamisi Momanyi and two others challenging the legality of Nyamira North district – and by extension all the other new districts – High Court judge Daniel Musinga accused the Executive of sidestepping Parliament and the Interim Independent Boundaries Review Commission in creating the district.

“It would be a mockery of our country’s Constitution for the Executive to sidestep the IIBRC and Parliament to create a new district,” Mr Justice Musinga said in his September 4 ruling. The judge directed that the boundaries of Nyamira district, as spelt out in the second schedule of the Districts and Provinces Act, 1992, should not be interfered with by carving the proposed Nyamira North district or any other district out of the existing district.

The lawyer had filed a constitutional application jointly with the Rev Titus Okoda and Peter Nyamoti Nyamekendo following endless wrangles among area residents over the site of the headquarters and boundaries. The respondents were the Attorney-General and the IIBRC.

Separation of powers

Mr Justice Musinga said: “In our nascent democracy, the constitutional concept of separation of powers must be respected so that all the arms of government operate and function in accordance with the law.” According to Mr Momanyi, since the Districts and Provinces Act of 1992 has not been amended, the President has only gazetted an indication to create new districts.

“They are not in the books of law and cannot be recognised until Parliament receives recommendations from the Interim Independent Boundaries Commission. What we have is a mere intention,” the lawyer said. His contention is backed by Attorney-General Amos Wako.

Mr Momanyi said according to the law, a district is clearly defined from where its boundaries start to where they end. “It has beacons and even where the headquarters has to be. The district is an identity, you identify with it. We are so proud of it,” he said.

“No one wants to be divided into small sub-units which don’t have value and which will be an embarrassment.”
While the court’s decision has been jubilantly received by those who sought its intervention, many – including Mr Momanyi – are waiting to see whether the State will act as the court directed.

Rescind decision

Already Justice minister Mutula Kilonzo has indicated the government will not rescind the decision to create new districts as district commissioners and other officers have already settled in. Mr Kilonzo yesterday asserted that the court’s ruling has no bearing on the new districts. He said it is an indication that the courts are out of touch with the public.

While defending the President for gazetting an “intention” to create new districts, Mr Wako conceded that the power to create the administrative units rests with Parliament. He said it is upon Parliament to endorse the President’s proposals. Mr Momanyi has threatened to move back to court if the ruling is ignored. But the AG said the High Court ruling on the matter was not final.

For his part, the Justice minister said the court’s ruling is “just a declaration and not a court order”. “You cannot be in contempt of a declaration,” he said. Mr Momanyi knows that implementing the decision may be difficult, so he has a Plan B.

“We have already got one of the MPs to table a motion to freeze the accounts and bar disbursement of funds to the illegally created districts. The real compliance is stoppage of funds to the newly created districts,” he said.

Freeze funding

Noting that Parliament has the authority to freeze funding for the new districts, he said they intend to sue the State for contempt as soon as they notice non-compliance with the ruling. But the Justice minister said such a suit would not be appropriate in this matter.

The origin of the problem can be traced to February when the President, during a visit to Nyamira, ordered the creation of a new district. Word spread that a district commissioner would soon be posted to Nyamusi township in Ekerenyo division, and the residents started preparing for the arrival of the officer.