Malombe under fire as Muli blasts silence over Kitui killings

Kitui Governor Dr. Julius Malombe is facing intense scrutiny and accusations of inaction and insensitivity following a surge in killings and insecurity within the county. National Liberal Party (NLP) leader Dr. Augustus Muli has publicly challenged the Governor, citing a lack of engagement with affected residents and a failure to address the deteriorating security situation. This development highlights critical legal and governance questions regarding the extent of a county governor's responsibility for security and public safety in Kenya's devolved system, particularly where security is primarily a national function. The incident underscores the complex interplay between national and county governments in maintaining law and order, and the mechanisms available for holding county leadership accountable for perceived dereliction of duty.

Kitui County is currently grappling with a severe wave of insecurity, marked by a series of killings that have instilled fear and prompted widespread public outcry. At the heart of this escalating crisis is Governor Dr. Julius Malombe, who has come under fire from National Liberal Party (NLP) leader Dr. Augustus Muli. Dr. Muli has accused the Governor of maintaining a conspicuous silence, demonstrating inaction, and exhibiting insensitivity in the face of the tragic events unfolding in parts of the county.

This public condemnation, following peaceful demonstrations in Kitui Town, casts a spotlight on the intricate legal and constitutional responsibilities of county governors in Kenya, particularly concerning matters of security and public order. While national security is predominantly a function of the national government, county governments, led by their governors, are not entirely absolved of responsibility for the safety and well-being of their constituents. The allegations against Governor Malombe raise pertinent questions about the scope of gubernatorial duties, the mechanisms for accountability in a devolved system, and the practical implications of perceived leadership failures in times of crisis.

This article will delve into the legal framework governing security and county governance in Kenya, examining the constitutional and statutory provisions that delineate the roles of both national and county entities. It will further analyze the potential avenues for accountability for a governor accused of inaction, drawing on relevant legislation and judicial pronouncements, and conclude with implications for legal practitioners navigating the complexities of devolved governance and public service delivery.

Kenya's constitutional architecture, particularly the Constitution of Kenya, 2010, established a devolved system of government comprising 47 county governments, each with a county assembly and a county executive. The Fourth Schedule of the Constitution clearly delineates the functions of the national and county governments. Notably, national security, including the National Police Service, is explicitly placed under the purview of the national government.

Despite security being a national function, county governments are not entirely detached from public safety. The County Governments Act, 2012, outlines the functions and responsibilities of a county governor, which include providing leadership in the development agenda and ensuring the well-being of the people. Furthermore, the National Police Service Act, 2011, established County Policing Authorities (CPAs) and County Security Committees (CSCs) to foster collaboration between national security organs and county governments. These committees, often chaired by the County Commissioner, are designed to coordinate security operations, monitor crime trends, and promote community policing initiatives at the local level. Governors, through their participation in these structures, are expected to contribute to local security management and address underlying drivers of insecurity through county-level development initiatives.

The accusations against Governor Malombe, specifically concerning his alleged silence, inaction, and insensitivity amid the Kitui killings, bring to the fore the nuanced legal obligations of a county governor in security matters. While the direct command and deployment of police services fall under the Inspector-General of the National Police Service, a national function, governors are expected to play a crucial coordinative and facilitative role. The County Governments Act, 2012, implicitly tasks governors with ensuring public safety and managing emergency services, which necessitates active engagement with security concerns. Dr. Muli's demands for public engagement, regular forums, and a joint statement with the County Commissioner highlight this expectation of proactive leadership and collaboration.

From a legal standpoint, a governor's perceived inaction could potentially lead to various forms of accountability. Article 181 of the Constitution of Kenya, 2010, read with Section 33 of the County Governments Act, 2012, provides grounds for the removal of a governor from office, including gross violation of the Constitution or any other law, commission of a crime, or abuse of office or gross misconduct. While 'inaction' itself might not be explicitly listed, a sustained and demonstrable failure to uphold the constitutional mandate of ensuring the well-being of citizens, or to effectively coordinate with national security organs as expected, could potentially be construed as gross misconduct or an abuse of office. The impeachment process, initiated by a motion in the County Assembly supported by at least one-third of its members and subsequently tried by the Senate, serves as the ultimate accountability mechanism.

Furthermore, the Commission on Administrative Justice, established under Article 59(4) and Chapter 15 of the Constitution, has the mandate to investigate any conduct of State Officers, or any act or omission in public administration that is alleged or suspected to be prejudicial or improper. This provides an avenue for citizens to lodge complaints regarding a governor's administrative failures. The emphasis on public participation in governance, enshrined in Article 10 of the Constitution and further elaborated in the County Governments Act, also implies a duty on the part of the governor to engage with residents on critical issues such as security. Failure to do so, as alleged by Dr. Muli regarding the denial of access to the governor's office, could undermine public trust and legitimacy, potentially fueling further legal and political challenges. The case of Governor Malombe underscores the delicate balance governors must strike between their limited direct security powers and their overarching responsibility for county welfare, demanding proactive engagement and coordination with all relevant stakeholders.

The ongoing pressure on Governor Malombe regarding the Kitui killings serves as a potent reminder for legal practitioners of the evolving landscape of accountability in Kenya's devolved governance system. While direct command over security forces remains with the national government, county governors bear significant constitutional and statutory responsibilities for the welfare and safety of their constituents. Perceived failures in leadership, coordination, and public engagement during crises can trigger severe political and legal repercussions, including potential impeachment proceedings under Article 181 of the Constitution and the County Governments Act, 2012.

Practitioners should closely monitor how such accusations of 'inaction' are framed and adjudicated, as they could set precedents for defining the scope of gubernatorial duties in inter-governmental security matters. Advising county governments requires a nuanced understanding of the division of functions, the role of County Security Committees, and the imperative for proactive public communication and collaboration with national security agencies. The Kitui situation highlights the critical need for robust governance frameworks that ensure both effective security responses and transparent accountability from elected county leaders, urging legal professionals to guide their clients in upholding these principles to safeguard public trust and constitutional order.