The President’s decision to reject the recommendations of the Nyaoga-led Commission of Inquiry to suspend the Makueni County Government has raised a lot of controversy, most of which, in our view, arises from a misunderstanding of the law.
As the institution mandated to oversee the implementation of the Constitution, we believe it is important to clarify the issues relating to the suspension of County governments generally, and Makueni in particular.
The beginning point is to appreciate the provisions of Article 191 of the Constitution and Section 123 of the County Government Act which set out the circumstances under which the President can suspend a county government.
Under those sections the President can do so if “exceptional circumstances” exist to warrant suspension.
The investigations to establish whether such circumstances exist are carried out by a Commission of Inquiry.
Having read the Commission’s report, one must applaud it for its thoroughness in establishing the problems facing the Makueni government and for the far-reaching recommendations they proposed.
The Commission outlines a comprehensive list of exceptional circumstances that warranted the suspension.
The Constitution, however, grants the President the final decision on whether the grounds warrant suspension.
In exercise of this discretion, the President considered the circumstances not warranting a suspension.
He indicated the need to ensure that all possible interventions to cure the government’s dysfunctionality were attempted before it could be suspended. In his view, there were still avenues available for resolution of the Makueni crisis.
There will, naturally, be differing views on whether suspension was warranted.
However, the President is the holder of ultimate responsibility on making that determination.
The President’s decision is not the end of the matter.
It is now up to the county leadership and other national institutions with mandates that impact the proper functioning of the county to deal with the outstanding issues.
These include the Controller of Budget, the Commission on Revenue Allocation, the Ethics and Anti-corruption Commission, and the Senate who must seek both short- and long-term solutions for Makueni.
Many of the possible solutions were proposed by the Commission including the application of existing legal mechanisms to ensure prudent utilisation of public resources.
Options proposed which do not necessitate suspension of the government include stoppage of release of funds to county governments or specific entities therein, or the taking over of functions.
In view of the recurrent conflicts, the Commission also proposed the creation of formal and informal intra-governmental resolution mechanisms with facilitators from independent non-political institutions to ensure non-escalation of disputes.
It was clear from the report that extensive changes are required in the law team to remove gridlock particularly in the budget process.
The report states that one of the challenges of effective governance has been lack of an enforcement mechanism for Chapter 6.
REVIEW INTEGRITY ACT
It is time the Leadership and Integrity Act was reviewed to incorporate effective enforcement mechanisms.
In the long term, the enhancement of educational qualifications and the application of ethical criteria for persons seeking elective office will ensure sufficient capacity to carry out their roles.
The county government must use the opportunity to re-establish effective working relations, build structures for conflict resolution and ensure prudent use of resources allocated to the county.
Finally, we believe that the challenges bedevilling Makueni apply in diverse variations and to different extents to numerous other counties.
Some of these can be explained by the novelty of the institutions created under the new Constitution, whilst others are reflective of plain bad leadership.
The Nyaoga team’s recommendations must not be seen in the context of Makueni alone; they must be applied to other counties whose challenges may not be as public, but where dysfunctionality harms public interest.
Mr Nyachae is the chairperson, Commission for the Implementation of the Constitution.