The President’s memorandum leaves out some legal terms and adds others

There is a language spoken and used by lawyers called legalese. It’s English, but to the untrained person, it may just as well be Greek for it is said to be designed to make it impossible for laymen to read and understand.

Legalese is always written in long sentences that have no comas; multiple words combined to make single words not found in the dictionary like “hereinafter”, and includes references to other texts and documents that only lawyers know of their existence. But among lawyers, we know how to decipher the meaning conveyed by legalese, which makes a conversation between two lawyers the most boring experience to the common layman.

Reading the legalese used in the County Governments Bill, 2012, and particularly clauses 30 and 54 thereof, I am unable to agree with the President’s legal advisers. I do this with tremendous respect as two of these advisers were my law lecturers at university. Nevertheless, I think they are not deciphering their legalese correctly.

Clause 30 had a provision which stated that the governor shall chair the county equivalent of the National Security Council. The President, in a memorandum, said this is unconstitutional since national security is not among the functions of county governments. I think the beginning of interpreting Clause 30 is to ask what it means when it says “the county equivalent of the national security council”.

The Constitution requires that all State organs be decentralised from Nairobi and their functions and services must also be decentralised, though not devolved. This process has already begun and in the recently passed National Police Service Act, there is created a County Policing Authority for purposes of decentralising the National Police Service.

The words of Clause 30 anticipate that there shall be created a county equivalent of the National Security Council as has been done for the Police Service. The President’s memorandum is correct that there is yet no county equivalent of the National Security Council, but the same is anticipated and actually required by the Constitution. This, therefore, is not a ground on which Clause 30 should have been impugned.

The President’s memorandum also seems to imply that by making the governor chair of this anticipated authority, the clause was transferring the national security functions from the national government to the county government.

Clause 30 of the intended Act says that it is making the governor the chairman so as to fulfil the requirements of Article 239(5) of the Constitution which reads as follows:
“The national security organs are subordinate to civilian authority.” I cannot think of a better and even safer way of subjecting national security to civilian authority than by involving the duly elected civilian executive at the county.

The second clause that displeased the President’s legal advisers was Clause 54 that provides that District Commissioners, District Officers, Chiefs and Sub-Chiefs act as administrators of the county government. Clause 54(2) actually begins with the words “until substantive appointments have been made by the country public service under this Act …” In my legalese, the word “until” imports a meaning that is transitory. Clause 54 is saying that all counties must employ their administrators. These administrators will be recruited by the County Public Service. Until this recruitment is done, DCs, DOs and chiefs shall serve as the administrators. I cannot see what can possibly be wrong with that. These officers are already employed and paid for by Kenyans. And they are being told that until counties get their act together, they must assist Kenyans. In the memorandum, the President says that this contravenes Article 6 of the Constitution which provides that national and county governments shall be distinct and shall conduct their mutual relations on the basis of consultation and co-operation.

With respect to my seniors, that was a manipulation of Article 6. It actually says the two governments “are distinct and inter-dependent”. The memorandum deliberately leaves out the word “inter-dependent” and then adds the word “shall” which is not used by Article 6. I don’t know the reason some words were omitted and others added, but the overall effect is to make unconstitutional what is authorised by the Constitution.

In any event, the intention of Clause 54 was not to get DCs, DOs and chiefs to work under the county government. It intended that they assist, temporarily, in discharging some administrative duties at the county until counties employ their own people.

The intention of Clauses 30 and 54 was clear. The President’s legal advisers, however, loaded meaning on the words of these clauses that they did not have and, by doing so, fomented an unnecessary constitutional crisis.

Paul Mwangi is the Prime Minister’s legal affairs adviser