During the March 4 General Election, residents of Mombasa County registered a rare fete by electing all the 30 ward representatives to the County Assembly from only one political party – the Orange Democratic Movement.
Mombasa County Governor Hassan Joho
Although party officials and operatives from the region led by Governor Hassan Joho celebrated the rare achievement, the unlikely 100 per cent triumph soon plunged the ODM fraternity into a legal quagmire.
Now controversy rages on after ODM decided to appoint a leader of minority in an assembly where the party not only enjoys absolute majority, but is also the only party. The favourable poll result further gave ODM the opportunity to nominate 15 extra members to the Assembly, pushing the number to 45.
Legal scholars are now faulting the move by the party as unconstitutional. But the Mombasa County Assembly has defended the move saying the appointment was necessary to enable them meet provisions in the County Governments Act 2012 on the composition of the County Assembly Services Board.
The Mombasa scenario is indeed unique as there is no single county in Nyanza, for instance, where ODM and Raila enjoy fervent support, that the party has a 100 per cent representation of Members of County Assemblies. Although most MCAs in those counties belong to the Coalition for Reforms and Democracy, all of them are certainly not ODM members. And the same is true for some counties in Central Kenya, where MCAs from TNA, GNU and Narc parties mingle in the same House.
The election of all 30 MCAs and the nominated 15 from the same party in Mombasa presented a unique scenario for ODM — not even anticipated by the new Constitution — where there was no MCA to take up the position of leader of minority. According to the Constitution, “the leader of the minority party shall be the person who is the leader of the second largest party or coalition of parties.”
But for lack of official opposition, Mombasa County Assembly elected Jomvu Kuu ward representative Karisa Nzai Leader of Minority.
“They can’t break the law to enable them to comply with another law, for me this is a farce. The drafters of the law did not anticipate a situation where county assembly would have an absolute majority,” said Lawyer Gikandi Ngimbuini.
Ngimbuini proposes that counties with absolute majority should move to court to suspend the provision stipulating that the minority of leader must seat at the County Assembly Services Board.
Best suited
“Mombasa’s case may involve one party only but there are other counties, say in Central Kenya, that also have all their members from the same coalition and those counties should not pretend to have a leader of minority,” he said adding that the County Governments Act should be amended to state “in the event that there is an absolute majority, the County Assembly Services Board can be constituted without the leader of minority.”
Mombasa County Assembly Speaker Thaddeus Rajwayi says the county had to “play around with the standing orders because in the County Government Act, it is mandatory that there should be a minority leader in the County Services Board.”
Rajwayi says the MCAs voted for Nzai as he was suited for the position because he is also the chairman of public investment committee that “puts him in a position to fight for resources to the marginalised areas.”
Amidst the debate, Nzai is busy and happily executing his duty of playing opposition to his own party. Torn between party allegiance and criticising his party, Nzai says that he has learned to master the balancing art.
“Because we are all from one party, I have to persuade my colleagues to support my course and we have in the past ganged up against some policies or provisions of some the policies brought up by the system,” he says.
Nzai insists that the duty of putting the county government on its toes is perceived as necessary by the governor, saying “it was the governor who suggested the establishment of the post and he is happy that Mombasa is the first county with absolute majority to establish a minority leader within the ruling party.”
Independent minded
Having served in the defunct Mombasa Municipal Council as a councilor for two terms and later three years as the deputy mayor, his colleagues at the county view him as politically senior to them.
“I’m an independent person. I critic where it is necessary and support issues that I think would help the marginalised communities in the county. I don’t oppose just for the sake of opposing,” he added.
Though some of his counterparts view him as a traitor because of his strong opposition to some of the county government’s decisions, Nzai says he won’t relent from championing his course as an alternative voice at the county.
And for his new tasks, The Standard On Sunday has established that Nzai is accorded all privileges due to the leader of minority. The leader of minority is the third senior most position in the assembly after the Speaker and the leader of majority and the holder enjoys several privileges including huge allowances, a vehicle and an office.
The Salaries and Remuneration Commission in November hiked the salary for the leader of minority by about 55 per cent to Sh325,078. The package has however been rejected by the MCAs.
Other than the salary, the minority leader — like the majority leader and the speaker — is also entitled to responsibility allowances of Sh35,000 per month.
Rajwayi says Nzai is now entitled to a car and office and other privileges that come with the position adding that “even if the county had nominated one person from the other parties in CORD, still the person could not have qualified to be the minority leader because a party must meet the 5 per cent membership threshold.”
Nzai separately maintains the issue of party allegiance does not affect his work as minority leader, saying even members from the same party have divergent views on issues.
But Abubakari Yusuf, a Mombasa advocate, says the county should have nominated a member from the civil society and appointed him to the position.
By Bernard Sanga, The Standard
