What you need to know:
- In the legislation sponsored by Eldas MP Adan Keynan, Parliament amended the Traffic Act and inserted new sections that say “a person shall not fly the national flag on any motor vehicle.
- Mr Wanyama argued that the legislation contravenes the Constitution and that the national flag is a symbol of the Republic of Kenya, just like the national anthem, court of arms and public seal.
Governors will have to wait until March next year to know if they will be allowed to fly the national flag on their vehicles.
The battle between the National Assembly and governors over who should fly the flag was revived in court on Wednesday, with the county chiefs faulting part of the legislation that prohibits them from doing so.
The Council of Governors told the High Court in Nairobi that by passing the law, MPs “meant to undermine the authority” of their office.
Lawyer Peter Wanyama, representing the governors, said the law goes against national values and devolution.
He said the national flag is not only a symbol of the national government but of the counties too.
In the legislation sponsored by Eldas MP Adan Keynan, Parliament amended the Traffic Act and inserted new sections that say “a person shall not fly the national flag on any motor vehicle; notwithstanding sub-section 1, the President, the Deputy President, the Chief Justice, the Speaker of the National Assembly and the Speaker of the Senate may fly the national flag on a motor vehicle”.
It continues to say that a person who contravenes the sub-section would have committed an offence and shall be liable to a fine not exceeding Sh1 million shillings or to imprisonment for a term not exceeding five years or both.
Mr Wanyama argued that the legislation contravenes the Constitution and that the national flag is a symbol of the Republic of Kenya, just like the national anthem, court of arms and public seal.
He said that the Constitution creates express provisions for respect between various levels of the government.
“The national flag is not a symbol of the national government but of the Republic of Kenya, and is something we take pride in. Parliament, in passing that law, undermined devolution and the authority of the county governor’s office. The legislation should, thereby, be nullified,” Mr Wanyama said.
In response to the petition, the National Assembly said section 4 of the Constitution provides that every devolved unit can have a county flag, court of arms and a public seal.
TRANSFER OF PUBLIC POWER
The House argued that the unity of a State is not managed by the national flag and that the Council of Governors is a consultative forum with the national government thus was not properly before the court.
In a rejoinder, the governors said after being sworn into office on March 27, 2013 the Transition Authority provided for the transfer of public power and resources and similarly allowed governors to fly the national flag on their official vehicles.
“One of the reasons adduced was that flying the flag would promote unity at the county level in accordance with provisions of Article 174 of the Constitution. The intention is to unite people by creating visual, verbal or iconic representation of the nation, people values, goals and history,” Mr Wanyama said.
Justice Isaac Lenaola will deliver a ruling on March 6, 2015.