A Show down between the Judiciary and the Executive has erupted in the High Court of Appeal over the recent High court’s ruling declaring the appointment and deployment of County Commissioners by the Executive illegal and therefore null and void.The controversial appointments and deployment of the County Commissioners by President Mwai Kibaki which immediately sparked off a national furore that led to the High Court’s decision last June has now set the Judiciary

and the Executive on a collision course after the latter appealed against the High Court’s decision.The appeal ironically filed by the acting internal security and the defence minister Yusuf Hajji through a private lawyer in apparent defiance against the advice of the Attorney General, Prof. Githu Muigai not to take such a step has since seen the two sides openly clash in court.

As the matter came before the Court of Appeal, the Judiciary led by Attorney General Prof. Githu Muigai dug in its heels flatly refusing that there was completely no need for the state to appeal against the ruling made by Lady Justice Mumbi Ngugi nullifying the appointments – arguing that though the President’s Office had a right to appeal, the correct thing to do is recall the commissioners.

In our last month’s USAWA issue we reported how the judiciary had yet again asserted its authority and independence when it made a land mark ruling overturning a decision by the executive to unilaterally execute the appointment and deployment of County Commissioners which had also failed to meet constitutionally set gender parameters.

The High Court Judge, Lady Justice Ngugi made history when she overruled President Mwai Kibaki’s decision a few months ago to appoint and deploy 47 County Commissioners unilaterally.

The appointments which caused a national storm after being gazetted were initially defended by Attorney General Prof. Githu Muigai who argued that the President was exercising his Executive powers when he appointed and deployed the commissioners.

In the previous issue Usawa we had also reported that the decision by the president on this matter had caused a national furore with the Prime Minister Raila Odinga leading the pack saying that he had not been consulted on the matter as required by the national accord the saw the formation of the current grand coalition government.

In the latest development on the County Commissioners’ saga, the Attorney General’s and that of the Chief justice have remained firm that there was no need to appeal against the ruling by Lady Justice Ngugi.

What compounds the matter is the fact that the Attorney General holds the mandate of the official government chief adviser and representative on all legal matters and reports to the President directly, just like Mr. Hajji who is also housed in the same office building with the President, but the latter is a political appointee.

Indeed it is also a fact that Mr. Hajji is a career administrator in the provincial administration that follows directly under the Office of the President under the ministry that he is holding in the acting capacity following the death of Prof. Saitoti in a helicopter crash. He retired from the proncial administration before joining politics.

A huge number of Kenyan’s who are opposed to the appointment and deployment of the County Commissioners are saying that the commissioners are just an extension of the provincial administration which is supposed to be scrapped under the new constitutional dispensation.

This was discernible on Tuesday as one wing of the President’s inner circle, led by acting Minister for Internal Security and Provincial Administration, Yusuf Haji, went to court to defend the controversial appointment of 47 county commissioners by the President after the High Court nullified it.

During the appeal court hearing, Prof Mugai’s representative appeared in court and declared before Lady Justice Ngugi the AGs office will not appeal against her ruling on the matter and that the state will comply with the order nullifying the appointments of the commissioners and would not file an appeal.

However on the contrary, Mr. Hajji and the Permanent Secretary of the internal security docket, Mutea Iringo dispatched a private lawyer Kibe Mungai to represent them at the very same hearing at which the Attorney General had declared there will be no appeal with Kibe making a contradicting declaration he was under instruction from the two government officials to appeal.

Despite the court ruling nullifying the appointments, the acting internal security minister and Mr. Iringo have since defied the orders since they had not terminated the controversial appointments as ordered by the court.

Earlier, the Prime Minister Raila Odinga had come out publicly criticizing the appeal attempts by Mr. Hajji and the PS saying that it was not in order that the minister should appeal against the ruling when the AG had advised the government against the move.

“The Attorney General and the Chief Justice had already clearly stated that they would not make an appeal against the ruling, then where does a minister come from with a private lawyer to appeal when this is supposed to be government business,” Mr. Raila said.

Put to task by Lady Justice Ngugi whether Mr. Iringo had the capacity as a government civil servant entitling him to act independently of the Attorney General and instruct counsel, he went defensive through Mr. Mungai saying that orders had been sought against the PS and that he was made party to the case.

 “Therefore his client was acting on his individual capacity as an interested party as he had been enjoined in the case,” said Mr. Mungai. In the notice filed at the High Court on behalf of Hajji and Iringo, the lawyer says that the judge was wrong in sending the commissioners packing.

Government insiders believe Hajji and Iringo could not have taken such a step without President Kibaki’s knowledge.  The ministry, which is among the most critical particularly on security matters, is directly under the President’s supervision, and is in his wing of the Grand Coalition Government.  Haji equally made good his threat to ignore the AG’s legal advice and went ahead to file a notice of motion appealing against the order.

What remains to be seen in the emerging g imbroglio is whether the appellants are going to succeed when the entire Judiciary is united as one in support of the decision made by Lady Justice Ngugi and if so whether the Executive will go ahead to implement the court’s orders.