What does it take to dissolve a county government?
That is the question on the minds of Meru residents after Governor Kawira Mwangaza said she was ready for the last card in the tiff with ward representatives—one that would see both members of the county assembly and the governor as well as her team sent home and new elections held in the devolved unit.
It is a tedious process that takes months to accomplish, but which is contained in the Constitution as the last resort in case of an impossible working relationship—or any other reasons grave enough to warrant such a move.
Article 192 of the Constitution provides for the procedure of suspending a devolved unit if there is an emergency or “in any other exceptional circumstances” where the President is satisfied that such action is justified.
The first step is where a petition, which should be supported by at least 10 per cent of registered voters in the county, is presented to the president.
In Meru, which has 780,000 registered voters, it means that at least 78,000 voters will have to okay such a petition.
The signatures then go through scrutiny and verification by the Independent Electoral and Boundaries Commission (IEBC).
In a fortnight after receiving the petition from the IEBC, the President shall submit a report on the grounds supporting suspension to the intergovernmental relations committee for ratification.
Once approval is obtained, the President nominates members of a commission to look into the adduced grounds and make recommendations.
Commissioners are approved by the Senate and appointed by the President through a Kenya Gazette notice.
Such a team should be chaired by an advocate of the High Court of Kenya with at least 15 years of experience.
Members will be: the chairperson of the National Police Service Commission; two residents in an affected county who have not stood for any elective office or been employed by the county in the preceding 10 years; and two other non-residents of the affected county.
If the commission recommends suspension of the county government, the President, if satisfied with the grounds, writes to the Speaker of the Senate expressing his decision within 14 days, after which the Speaker refers the report to the relevant committee for consideration.
Grounds are justifiable
Within 14 days, the committee considers the report and, if satisfied that the grounds are justifiable, makes a recommendation to the Senate.
A resolution to dissolve the county is made and adopted in accordance with the provisions of Articles 122 and 123 of the Constitution.
Then the President shall, within 14 days of receipt of the Senate resolution and by notice in the Kenya Gazette, suspend the county government for a period not exceeding 90 days or until the suspension is terminated earlier by the Senate in accordance with Article 192(4) of the Constitution. If the suspension is not lifted, fresh elections are held within the 90 days after the suspension.
During suspension under Article 192, arrangements shall be made for the performance of the functions of a county government in accordance with the County Governments Act.
However, since the IEBC is not properly constituted with no indication of commissioners being appointed any time soon, governance experts say that in the event the county government is completely dysfunctional, the president can institute a direct rule.
Prof Gitile Naituli, a governance expert and lecturer at the Multimedia University says the President can decide to invoke Article 10 of the Constitution that binds him to intervene in a situation where peace is threatened.
The Article states that the national values and principles of governance bind all State organs, State officers, public officers and all persons to maintain the rule of law and ensure national values and principles of governance are adhered to for the sake of national unity, rule of law, democracy and participation of the people in governance.
“The President can exercise residue powers under this Article where he is allowed to intervene and rule the county directly with the help of the Senate for the benefit of the people of Meru,” Prof Naituli said in a phone interview.
He said the issue can be resolved politically, which would be the easiest option, where Ms Mwangaza is impeached again so that the deputy governor takes over but exercises limited powers where he is monitored by a commissioner.
“Since there are a lot of interests, after the deputy governor is sworn in the president would also send a commissioner who will exercise powers on his behalf,” he said.