Impasse as Kibaki returns County law

President Kibaki on Monday applied brakes on the race to devolution by declining to sign into law the main Bill establishing county governments.

The President rejected a House resolution requiring that district commissioners, district officers, chiefs and their assistants report to the county governor.

The move sets the stage for a possible clash with Parliament.

President Kibaki refused to give assent to County Governments Bill, 2012, pointing out that MPs had introduced “unconstitutional” amendments when they approved the Bill on Thursday.

According to the President, the amendments infringed on the provisions of the Constitution “by transferring functions and officers of the National Government to the County Government.”

He said the Constitution was clear that the two governments shall be “distinct”.

He added: “It transfers security functions of the National Government to the County Government in contravention to the express provisions of the Constitution.”

The President is also piqued that Parliament overstepped its mandate, because under the transition period, the restructuring of the provincial administration is a matter of the national government, at least until August 27, 2015 — five years after the promulgation of the Constitution.

With the rejection of the MPs’ amendments, the President fired off a memorandum to National Assembly Speaker Kenneth Marende with the details of what needs to be amended in the Bill if it has to become law.

The Speaker is expected to notify MPs about the President’s stance this afternoon when the House reconvenes.

As soon as Parliament is duly informed, the MPs will have two options. They can decide to agree with the President and amend the Bill as per the recommendations, or they can decide to stand tall and insist on their resolution.

Mr Patrick Lutta, a Nairobi lawyer with legislative grounding, said the MPs will have to weigh their options before deciding to stand up to the President over the memorandum.

The Constitution, Mr Lutta said, will require the MPs to raise 65 per cent majority — or 145 MPs — to veto the memorandum.

“If they are unhappy with what the President has said, they will have to get the numbers and send the Bill back to him in its original form. If the MPs do that, the President will have to assent to the Bill within 14 days,” Mr Lutta told the Nation on Monday shortly after State House revealed the reasons for the rejection of the Bill.

This, Mr Lutta said, was a result of reading section 3 of the Sixth Schedule.

This is the first of the Bills to implement the Constitution that the President has rejected. On Monday, State House said the government was “committed to the full implementation of devolution and is determined to ensure effective legislation is enacted to that end”.

The President, however, assented to the two Bills that will prop up the work of county governments in relation to the national government, and regarding the transition period.

The two Bills, now Acts of Parliament, are the Transition to Devolved Government Bill, 2012, and the Intergovernmental Relations Bill, 2012.

That the President rejected the assent days after it emerged that the government had secretly drawn up a Bill to ensure that the provincial administration is fully entrenched in the country’s governance, lends credence to the apprehension of MPs that there were people in power who were out to subvert devolution as enshrined in the Constitution.

A draft of the National Administration and Coordination Bill is with the Office of the Attorney-General awaiting submission to the Cabinet for approval. Neither the Commission for the Implementation of the Constitution, nor the Kenya Law Reform Commission have seen the draft Bill, which is clearly in its formative stages.

The Bill has proposals to “establish an institutional framework for the national administration; to coordinate service delivery by the national government, State departments and organs; and to provide for responsibilities, functions, and powers of administrative officers and for connected purposes.”

This will effectively give the government leeway to run a parallel system of governance all the way to the grassroots, irrespective of what the counties do.

Readily accepted amendment

When Bura MP Abdi Nuh moved the amendment, he was shocked that Local Government minister Musalia Mudavadi, readily accepted it, given the earlier reluctance.

Mr Mudavadi saw Dr Nuh’s amendment as addressing the concerns of the MPs regarding the government’s push to have the provincial administration retained.

The government has also lined up the National Security Council Bill — another of those that are likely to ruffle feathers of the lawmakers keen on devolved the system. The Bill is with the CIC undergoing “stakeholder review”.

Basically, it provides for the national government to have “eyes” on the ground when it comes to security matters, and a direct chain of command, regardless of the reporting lines to county governments at that level. (READ: State seeks to retain DCs under new laws)