WHAT IS THE IMPLICATION OF SECTION 42 OF COUNTY GOVT ACT?

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By LAWYER PAUL MUSYIMI

WHAT IS THE LEGAL IMPLICATION OF SECTION 42 OF COUNTY GOVT ACT?

WHAT IS THE IMPLICATION OF SECTION 42 OF COUNTY GOVT ACT?WHAT IS THE IMPLICATION OF SECTION 42 OF COUNTY GOVT ACT?

The excitement around the small issue raised by the MCA reminds lawyers of the excitement we used to have in First Year at Law School upon discovery of a section of law that appears to throw spanners in the works.

But you soon learn that law is made for the continuity of Government, not to stop the Government! The interpretation of law that affords operations of Government to continue unabated will always prevail, Lawyer Paul Musyimi has said.

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  1. Section 42 is meant to avoid an “interregnum” (suspension/pause of normal government after succession). It also seeks to limit how long the outgoing CEC acts, or does it?
  2. Section 42 (1) is clear that CECs of the previous Government shall remain in office until the next CEC is “constituted.” In other words, before a new CEC is Constituted, the old CEC is still operational.
  3. What is “constitution” of CEC is a key issue. Is a CEC considered constituted once it is named or upon swearing in? The import given to Section 42(2) comes down to the mischief it was meant to resolve, namely, to make constitution of CEC priority business of County Assembly.
  4. The question is: What if CEC is NOT constituted in 21 Days? Does this make actions of the Government illegal? Does this make constitution of a CEC past 21 Days illegal? The answer to both questions is NO.
  5. Section 42 is clear a CEC shall exist until another CEC is constituted. If a CEC is not constituted in 21 days of swearing of County Assembly, as per Section 42(2), the clock simply starts to tick anew.
  6. The provisions of the Act on filling a vacancy that occurs in office of CEC, kicks in!
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