The Constitution of Kenya in Article 179 vests the executive authority of the county in the County Executive Committee. The county executive committee also exercises the executive authority at the county level.
The county executive committee consists of–
- the County Governor and the Deputy County Governor; and
- members appointed by the County Governor, with the approval of the County Assembly, from among persons who are not members of the Assembly.
The appointed members of the county executive committee are the head of departments for the counties. They are equivalent to cabinet secretaries at the national level. They are accountable to the county governor when they exercise their powers and perform their functions.
The county governor is the chief executive of the county while their deputy governor is the deputy chief executive of the county. See the functions of the County Governor in Kenya.
If a vacancy arises in the office of the county governor, the appointed members of the county executive committee cease to hold office. See how a county governor is impeached.
Section 31 (a) of the County Governments Act says the county governor can dismiss a county executive committee member at any time if the governor considers that it is appropriate or necessary to do so.
However, this power is subject to certain limitations under the law.
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In 2015, three Court of Appeal judges sitting at the Nyeri appellate court ruled that the governors cannot dismiss the county executive members without following the due process provided by the constitutional law (Civil Appeal 2 of 2015).
Judges Alnasir Visram, Martha Koome and Otieno Odek asserted that the governors’ authority to dismiss county executives with regard to section 31 of the County Governments Act does not constitutionally extend to an arbitrary or capricious utilization of those powers.
The ruling stemmed from an appeal case by the Nyeri County Governor Nderitu Gachagua against a County Executive, Ms Cecilia Ndung’u. The Governor had fired her eight months after her appointment. Earlier, the Industrial Court had reinstated Ms Ndung’u because the governor sacked her without acknowledging the due process.
The Industrial Court had nullified the sacking of Ms Ndung’u citing the breach of her constitutional rights under Articles 27, 28, 41 and 50 of the Kenyan Constitution.
In his defence, the Nyeri Governor (through his lawyer) said he was justified to sack his executives without giving a reason, just like the President can sack the cabinet secretaries under Article 152(5) (b) of the Constitution.
The appellate judges, however, faulted the governor for the manner in which he had sacked Ms Ndung’u who was the Nyeri County Executive Committee Member for Culture, Gender, and Social Development.
The judges affirmed that governors ought to exercise the hiring and firing power reasonably. Moreover, the governors should give the county executive committee members a chance to defend themselves from any accusations levelled against them.
This ruling set a precedent in the manner in which the county governors relate with their executives. The appellate judges made it clear that the governors could only dismiss the county executives for the benefit of the county but not for their (governors’) selfish whims.
Section 31 of the County Governments Act states the powers of the county governor. Section 31(a), in part, reads that the governor can dismiss a county executive committee member at any time if the governor considers that it is appropriate or necessary to do so.
In spite of this, previous interpretations from the Judiciary have cautioned that such legal provisions should never be read in isolation.
They should be read alongside other laws that relate to them and that ensure a just and fair interpretation and execution of the Supreme Law. This is meant to guarantee restraint in the application of power by the diverse public officials.
Thus, any power conferred to the county governors to dismiss the county executives is only qualified up to the point where the governors apply the power reasonably.
Ms Cecilia Ndung’u in her defence at the Industrial Court had cited a breach of her constitutional rights under Articles 27, 28, 41 and 50 of the Supreme Law (Constitution).
Article 27 deals with equality and freedom from discrimination while Article 28 with deals with inherent human dignity and the need to have that dignity respected. Articles 41 and 50 deal with labour relations (fair labour practices) and fair hearing in dispute resolution, respectively.
The grounds upon which county governors can dismiss county executives include:
- abuse of office,
- gross misconduct,
- failure, without reasonable excuse (or written authority of the governor) to attend three consecutive meetings of the county executive committee,
- physical or mental incapacity rendering the executive committee member incapable of performing the duties of that office, or
- gross violation of the Constitution or any other law.
The Civil Appeal 2 of 2015 safeguards the positions of county executive members and provides them with some level of job security in the execution of their mandates. At the time this case was in court, some governors were sacking county executives arbitrary in counties like Kisumu, Nyeri, and Nairobi.
With this legal interpretation in place, the governors, therefore, need to exercise caution when intending to sack the executives on personal or selfish whims.
What if the county governor follows the due process in dismissing a county executive committee member?
If the courts determine beyond a reasonable doubt that indeed the governor followed the due process, then the decision is binding. The courts cannot reverse it. The county executive committee member ceases to hold office.
A case example is Petition 121 of 2016 filed by the Executive Committee Member (CECM) for Environment, Energy, Natural Resources, Wildlife Management, and Tourism of the County Government of Garissa.
The Employment and Labour Relations Court determined that the then Governor Nadhif Jama had followed the due process in dismissing the CECM, Ahmed Aden.
The county executive committee member also ceases to hold office whether they go to court or not, provided the county governor follows the due process and their dismissal is not arbitrary.