NEWS ANALYSIS
LOOMING SHOWDOWN: Governor’s move has raised a furore of criticism
It is not clear whether Lenku would have preferred to go for a different set of nominees had he been sure of a friendlier legislature
A showdown is taking shape between Governor Joseph ole Lenku and the new County Assembly, the third since the introduction of devolution.
Lenku, who was re-elected in the August 9 general election on an Orange Democratic Movement (ODM) ticket, is apparently seeking to consolidate his stranglehold on power during his last five years in office while evading potentially hostile scrutiny from the County Assembly.
It is well known that the governor was behind the candidature of lawyer Koin Lompo for the County Speaker position. However, the United Democratic Alliance (UDA) commands a majority in the Assembly and the winner in that election was the party’s candidate Justus Ngussur. This seems to have created panic in the governor’s camp and forced him to go back to the drawing board.
Evading scrutiny
The result can be seen in the recent appointment of County Executive Committee Members, in which the governor has attempted to evade the scrutiny of the House by purporting to “restructure” and “reorganize” his Cabinet. For those who will not be re-joining his government, he has appointed other Cabinet members to act in those portfolios. Thus, Lenku has purposed to avoid taking the names for scrutiny to the Assembly by claiming that his Cabinet consists of no new members requiring vetting.
It is not clear whether Lenku would have preferred to go for a different set of nominees had he been sure of a friendlier County Assembly. As it is, the jobs of the previous CECs are secure — at least for the time being — arising out of Lenku’s fear of a possible rejection of names by the county legislature.
Furore of criticism
The governor’s move has raised a furore of criticism that his legal adviser, Daniel Kanchori, has dismissed as unwarranted. “I refer his critics to the County Government Act, where the doctrine of re ipsa loquitur applies. In summary, the Governor is within the legal timelines regarding the Cabinet. Most important, service delivery cannot be held in abeyance on account of partisan political pressure. Our MCAs understand their roles very well and nobody should purport to speak for them.”
Should those timelines expire before the governor forwards the names for scrutiny by the County Assembly, that action will provide fodder for the first battle between the county executive and its legislature. With a majority from the ruling UDA and a Speaker who owes him no loyalty, the governor will likely face the wrath of the House in a manner he did not experience in his first term.
County Attorney Augustine Sekeyian, who is the principal legal adviser to the county government (both the Executive wing and the Legislature), was equally guarded in his remarks. “The governor is now on his second term. The law is not clear on a governor who retains his seat on matters of vetting. There is no law that prevents the governor from vetting his Cabinet but there is no specific law that forces him to do it. He is the one who has been elected by the people; there should however be an element of public participation for his team.”
Referring to the case of Omkiya Omtata, who sued the national government because some Cabinet Secretaries were not vetted, Sekeyian said the matter was still awaiting determination at the Court of Appeal following an appeal by the Attorney General. “The Court of Appeal stayed what the High Court had decided. So, until the matter is heard and determined, that is when people can argue that when you come back as government or president you have to vet your CECs or Cabinet ministers.”
Looming tug-of-war
But the County Assembly may be in no mood for niceties and legal arguments. “We are waiting for him,” said Majority Leader John Loisa. “As MCAs, we are expecting him to bring the list of nominees. These CECs were vetted by the former Assembly, of whom 90 per cent did not come back. So, why not bring us the list to scrutinize and vet in good faith? We have no problem, they are our brothers and sisters, but why evade vetting?”
Quoting Article 179 (7) of the Constitution of Kenya, the Majority Leader argued that when a vacancy arises in the office of a governor, the CECS cease to hold office. “If you look at Machakos, Alfred Mutua served for two terms, and his nominees were vetted afresh. So many other counties did the same.”
Kajiado Senator Samuel Seki has also come out guns blazing to attack Lenku over the matter. “Immediately the term of the governor ends, it ends with his government. If you want to bring people back, they must be vetted.”
Should there arise a tug-of-war between the governor and the County Assembly, service provision will be likely to suffer. This is because the Assembly will be tempted to flex its muscles by withholding its approval for budgets that Lenku will desperately need to run the county. “At this stage, we cannot pre-empt whereas there is no evidence that he will not bring these names to the Assembly. For now, he is still within the law,” said Loisa.
