My rationale for rejecting dissolution of Makueni

There has been much discussion and commentary regarding President Uhuru Kenyatta’s decision to reject the recommendation to suspend the county government of Makueni.

As the sole dissenting voice in the Commission which recommended dissolution, I feel I should set the record straight and clarify some issues which the public may have been led to misapprehend in the debate that has ensued.

As I laid out in my 90-page dissent, it should be understood that suspension of a county is an extreme measure which should be taken only in exceptional circumstances.

If we were to recommend the suspension of County Governments simply because of procedural issues such as a delay in approval of budgets, or because the two heads of the respective arms of the county government fail to be bosom friends or even for misappropriation of funds, that would open a Pandora’s Box.

Such an approach would mean we would see no end to the suspension of our county governments.

NO EXCEPTIONAL EVIDENCE

It is now an inescapable reality that devolution occupies such a central and hallowed place in our Law that it cannot have been the intention of the drafters of the Constitution that devolution could be interfered with or watered down other than through the straight and narrow limits defined by the Constitution.

My view was that the Commission should only have recommended suspension if, and only if, it found as a matter of fact (and not as a matter of discretion), that there exists ‘any other exceptional circumstances’ within the meaning of Article 192 (1) (b) of the Constitution for such an action.

Having examined the Makueni petition and weighed the allegations against the evidence laid before the Commission, I concluded that so far, no evidence of such exceptional circumstances has been shown to exist.

With the above in mind and applying the settled tools of Constitutional interpretation and the techniques of comparative methods in law we may draw from other jurisdictions, I offered the following recommendations:

SUFFICIENT MATERIAL
That the power under Article 192 (1) (b) should be used very sparingly and only when we are fully satisfied that there exists ‘any other exceptional circumstances’ that are analogous to and have a nexus with the exceptional circumstances of Internal Conflict and further, that Article 192 of our Constitution ought to be called into operation only most reluctantly and in the very clearest and manifest of cases, much as has happened in the United States of America where the provisions of the law enabling the recall of a sitting Governor in California has been used only once since that nation came into existence over 239 years ago.

I made the case that if at all the provisions of Article 192 are brought into operation, then the players ought to take proper precautions before recommending or actually suspending the County Governments.

It is notable that the common thread running through Article 192 is that the constitutional provisions require that the material before the President, the Commission and the Senate must be sufficient to indicate that unless suspension is investigated, it is not possible to carry on the affairs of the County Government as per the provisions of the Constitution.

PERIODIC ELECTIONS
From the foregoing, it was my view that the Commission cannot exercise its powers under the Constitution on wish or whim.

Any abuse or misuse of this drastic power under Article 192 damages the fabric of the Constitution.

The Constitution makes it abundantly clear that the power of dissolution is not meant to be exercised for the purpose of securing good or the best or the most well-mannered or the most efficient government.

Instead, the framers of the Constitution have provided for the replacement of such County Governments by means of periodic elections.

In sum, the power to dissolve a county should be used very sparingly and should not be invoked in ways that would inevitably shake the foundations of devolution.